O'Neal v. Seixas , 85 Ala. 80 ( 1887 )

SOMERYILLE, J.

1. The land is described in the mortgage of the complainant as “a lot of land near Florence, north of the Fair Grounds, containing 35 acres, more or less.” A more accurate description of it is given in the bill, coupled with the averment that this was the only such lot situated in that locality, of which the mortgagor, Neander H. Rice, was seized and possessed at the time of the execution of the mortgage, on August 24th, 1875. ( The description is not so vague and indefinite as to be incapable of being aided by parol evidence of identification, when read in the light of the circumstances surrounding the contracting parties at the time the conveyance was made. Nor would it be necessary that the mortgagee should have been placed in actual possession of the premises, that being only one of the usual, but not indispensable modes, of identifying lands conveyed by uncertain terms of description. — Chambers v. Ringstaff, 69 Ala. 140; Ellis v. Martin, 60 Ala. 394; Varnum v. State, 78 Ala. 28; Meyer v. Mitchell, 75 Ala. 475; 3 Wash. Real Prop. (5th Ed.), pp. 435-436.

The first five grounds of demurrer, based on this phase of the mortgage, were properly overruled.

2. The mortgage in question did not, it is true, convey to the mortgagees the legal title, but only an equitable estate in the land. Yet it was “an instrument in the nature of a mortgage,” and such instruments are authorized to be recorded, so as to be brought within the benefits of the registration statute; and when recorded in time, may operate as constructive notice to subsequent purchasers. This has been the law in this State since the Code of 1852, although the rale prior to that time was different. — Code, 1886, § 1810; Code, 1852, §§ 1287-1288; Fash v. Ravesies, 32 Ala. 451. The present statute is, in substance, the same as that in New York, which was construed, as far back as the year 1815, to embrace equitable mortgages. “The statute,” it was observed, “speaks of any writing in the nature of a mortgage, and these words may reach to any agreement creating an equitable incumbrance. The design of the statute was, that every purchaser should look to the registry of mortgages, and see whether there was any mortgage, or any writing in the nature of a mortgage, previously executed by the grantor.” — Parkist v. Alexander, 1 John. Ch. Rep. 394, 399; Hunt v. Johnson, 19 N.Y. 279; Thomas on Mortg. (2d Ed.), § 458; 1 Jones on Mortg., § 469. In Pierce v. Jackson, 56 Ala. 599, an equitable mortgage was held to be such a conveyance as was authorized to be recorded under our statutes of registration. The ¿lictum to the contrary in Bailey v. Timberlake (74 Ala. 221, 224), ignores the present statute, and is based on decisions which arose under the old law, prior to 1852. The record of this mortgage operated as constructive notice of its contents, to all persons purchasing after its registration, including the appellant.

3. The bill also negatives the fact, that the defendant, O’Neal, acquired any title whatever to the land by his purchase from Crow on January 8th, 1886. It alleges that Crow had no title himself, and was not in possession when he made the deed. If this be true, O’Neal could not be a bona fide purchaser of the legal title, and nothing less will be available against a secret equity. — Craft v. Russell, 67 Ala. 9. Tbe deed to O’Neal, moreover, was a mere quitclaim; and a purchaser under this form of conveyance is held to be put on inquiry as to, and is not, therefore, protected against latent, outside equities. It stamps the acquired title as suspicious, and one who holds under it can not claim protection as a bona fide purchaser without notice. Barclift v. Lillie, 82 Ala. 319; Derrick v. Brown, 66 Ala. 162.

4. The transfer of the mortgage note to the complainant by delivery merely, without assignment in writing, operated as an equitable transfer to him of the mortgage by which the debt is secured, and authorized the transferree to file the present bill to foreclose such mortgage, the debt being the principal, and the mortgage its mere incident. — Duval v. McLosky, 1 Ala. 708; 3 Brick. Dig. 640, § 99; Williams v. Cox, 78 Ala. 325.

5. The assignments of demurrer, raising the question of the statute of limitations of ten years, were properly overruled. The bill fails to allege that there was any actual adverse possession of the land by Mrs. Rice, under the conveyance made to her by her husband on March 1, 1876. This deed, being based on no other consideration than that recited — the rents and income of the wife’s statutory separate estate — was fraudulent and void as against existing creditors of the grantor, including the complainant. — Early v. Owens, 68 Ala. 171; Wing v. Roswald, 74 Ala. 346. The deed, moreover, being made directly from husband to wife, could create in the vendee only an equitable, and not a legal estate. It was void at law, and good only in equity. — Bryan v. Lehman, 67 Ala. 558.

6. Nothing could have put' in operation the statute of limitations, as against the complainant, who was a mortgagee, except ten years of adverse possession by the vendee of the mortgagor, and those claiming under her, which must have been open, notorious and uninterrupted. — Smith v. Gilliam, 80 Ala. 401; State v. Conner, 69 Ala. 212; Snedicor v. Watkins, 71 Ala. 48; Barclay v. Smith, 66 Ala. 230. This fact not appearing on the face of the bill, if true, could be made to appear only by plea or answer introduced by way of defense.

7. The personal representative of Mrs. Rice had no interest in the present suit, and there was no necessity for making him a party defendant to it. She had parted with whatever interest she bad in tbe land, by making ber will devising tbe premises to ber busband for life, witb remainder to ber children. Nor bad sbe any connection witb tbe mortgage debt, wbicb was exclusively tbat of ber deceased busband, whose administrator is made a party to tbe bill.

Tbe decree of tbe chancellor overruling tbe demurrer to tbe bill, in all its assignments, is free from error, and must be affirmed.