Porter v. Wheeler , 105 Ala. 451 ( 1894 )

BRICKELL, C. J.

The general rule upon which the appellant relies, is well settled. When one knowingly suffers another, in his presence, to purchase property to which he has a claim or title, which he conceals, or as to which he is silent, he is deemed to waive the claim, and will not afterwards be permitted to assert it to the prejudice of the purchaser or his privies. There is, however, no aspect of this case, in which the rule can be applied with reason or justice. The. mortgage incumbering the lands, and which it is the object of the bill to remove as a cloud on the title of the appellant, at and prior to the purchase of the lands, was of record in the proper office. The record was the mode which the law required the mortgagee to pursue, to protect and preserve his title and security against subsequent alienation by the mortgagor to bona fide purchasers, not having notice. When he had caused the mortgage to be recorded, he had done all that the law requires, and all subsequent purchasers were bound at their peril to examine the record and take notice of the mortgage. The presumption is right and just, that an intending purchaser examines the records touching the title of his vendor; and it is right and just to impute to him notice or knowledge of all the record may disclose; if the examination is not made, whatever of loss may result, is attributable to his negligence, and not to the fault of him who has on the record a paramount claim or title. The law is well settled, that one having a title of record, so long as he may do no affirmative act to mislead or deceive, is under no further duty to those who may acquire subsequent rights, and will not be barred from the assertion of his title. He may know or be informed that others are proposing or negotiating for rights and interests in property bound by his title of record; he is under no obligation to inquire for or hunt them up, and warn or apprise them of that which the record discloses, and it is their duty to ascertain. — Bigelow on Estoppel, 594; Steele v. Adams, 21 Ala. 534; Brinckerhoff v. Lansing, 4 Johns. Ch. 65; Rice v. Dewey, 54 Barb. 455; Bramble v. Kingsbury, 39 Ark. 131; Rector v. Board of Improvement, 50 Ark. 116. The bond for title the appellant obtained from his vendor, may have been written by Wheeler, and of consequence he may have had knowledge of the appellant’s intended purchase. The vendor had the equity of redemption in the lands, and as the record afforded appellant knowledge of the mortgage, Wheeler could well presume that which the law presumes, that the appellant had knowledge of it, and that he was purchasing subject to it.—Brinckerhoff v. Lansing, 4 John. Ch. 65, supra.

The appellant admits that at the time of the purchase he had information of the Tweedy mortgages, and of a mortgage to Wheeler, and accepted a release from Wheeler. The release executed by Wheeler' is clearly expressed, speaks of and refers to a mortgage held by him of which he was, to say the least, the apparent mortgagee or holder, and was incapable of producing on the mind of the appellant any reasonable impression or belief, that thereby the Tweedy mortgage was referred to or intended to be released. There had been two mortgages to Tweedy, but when the appellant purchased, the larger mortgage had been satisfied, leaving outstanding the mortgage now sought to be cancelled, and it is to this mortgage the admission of appellant that he had notice must be referred. Having notice of the truth of the matter, if Wheeler or Jones had been present when he entered into the contract of purchase, the silence of the one or the other, could not be regarded as misleading or deceptive. If they had spoken, they could not have imparted to the appellant any information he had not previously acquired.

It would be as manifestly unjust to apply the doctrine of estoppel enpais, to one who is without fault, or who has not by some act or declaration, or by his silence when he should have spoken, induced another to chango, his condition, as to withhold the application when the fault can be imputed properly. The evidence is clear and convincing, that Jones was the assignee of the mortgage, having in it the exclusive right and interest. The relations existing between him and Wheeler were of the closest and most confidential character, but there is a want of relevant, material evidence, that Wheeler had authority, or even assumed authority, to act for or bind him in reference to the mortgage, or was ever dealt with by the appellant in the belief of, such authority. And it is Wheeler's supposed omission and conduct which are relied upon as forming the estoppel asserted. If he were the party to be affected, it is but just, and proper to say, the evidence does not justify the imputation to him of any omission, act or declaration having in it an element of an estoppel enpais.'

The burthen of proving payment of the mortgage debt, rested on the appellant. Payment of a debt is an affirmative plea, whiclr must be always proved by the party averring it. There is no presumption of payment of a mortgage debt until after the lapse of twenty years from the law day.—Coyle v. Wilkins, 57 Ala. 108.

It is the generally accepted doctrine, that a mortgagee can not upon a judgment recovered on the mortgage debt, cause the equity of redemption of the mortgagor to be levied on and sold under execution. — 1 Jones Mort., § 665, 2/6. § 1229: Powell v. Williams, 14 Ala. 476. But if the equity of redemption be the subject of the levy and sale under execution at law, as the statute now renders it, the mortgagee having a debt not secured by the mortgage on which he obtains judgment, may subject it to levy and sale under execution issuing on the judgment. — 1 Jones Mort., § 665; 2 lb. § 1229. If the mortgagee was the real purchaser of the equity of redemption at the sale under execution issuing on a judgment founded on a debt not secured by the mortgage, his right to a foreclosure of the mortgage is unimpaired.

We have considered the questions raised in argument. The evidence reduces the case to a purchase of lands, the records disclosing the true state of the title, and the absence of all evidence that the purchase was induced by any misconduct on the part of a mortgagee" having a paramount title ; from the consequences of the purchase, he is without equity to be relieved.

Let the decree of the chancellor be affirmed.