39 F. 243 | C.C.N.D. Fla. | 1889
“The possession of land by a third person is said to put a purchaser upon an inquiry; and he is charged with notice of all that he might have learned by a due and reasonable inquiry. A purchaser who is thus put upon inquiry is bound to inquire of the occupant with respect to every ground, source, and right of his possession. Anything short of this would clearly fail to be “due and reasonable inquiry.” 2 Pom. Eq. Jur. § 616, and note at bottom of page 55; 1 Jones, Mortg. § 601; Kerr v. Day, 14 Pa. St. 112; 2 Pom. Eq. Jur. § 607, and note at bottom of page 45; Witter v. Dudley, 42 Ala. 616. Actual possession of land is constructive notice of ownership, or of an interest, and such notice is sufficient to put creditors and purchasers on inquiry. McRae v. McMinn, 17 Fla. 886; Hyer’s Ex’rs v. Caro’s Ex’x, 18 Fla. 694. “The possession must be actual. It must be marked by acts of dominion, such as the erection of houses, making valuable improvements, claiming ownership, or by some other act evidencing that the possession is under claim of right. Actual possession is an open, patent fact, and it is notice to all men contracting in reference to the property thus possessed, and is equivalent to actual notice of title, legal or equitable, or of the claim under which such possession is held.” Bernstein v. Humes, 71 Ala. 260; Doolittle v. Cook, 75 Ill. 354. The testimony shows that defendants, William Young, James Calhoun, Lawrence Ely, James W.
As to the lot claimed by the defendant Andrew Gibson, it appears from the evidence .that he was not in possession of the lot at or before the execution of the mortgage, and that he received his deed long subsequent thereto. The mortgage described two lots of land as “lots 13 and 14 of Burbridge’s addition.” The bill alleges that the intention was to mortgage “lots 13 and 14 of Block 1, in Burbridge’s addition to Jacksonville.” The answer of defendant Cook, who is now the owner of said last-described lots, denies this allegation, and that the mortgage covered these lots. The proof shows that there are 10 blocks in Burbridge’s addition to Jacksonville, each containing lots numbered 13 and 14, and that there are 6 blocks in Burbridge’s addition to La Villa, each containing lots numbered 13 and 14. The evidence tends to show that, so far as is disclosed by the public records, E. H. Buckman had, at the time he executed the mortgage, title to no other lots numbered 13 and 14 except lots 13 and 14, in block 1, of Burbridge’s addition to Jacksonville, but it further tends to show that he had in some manner dealt with lots 13 and 14, in block 2, of Burbridge’s addition to Jacksonville, and had at one time given a mortgage to other parties on the last-named lots. A bill for the foreclosure of a mortgage should so describe the mortgaged property that if a sale is ordered the officer of the court may with certainty and safety execute the decree, and that the purchasers may be informed of the particular premises which are exposed to sale, and which they can acquire. Hurt v. Freeman, 63 Ala. 335. The mortgage is not certain in its description of the lots in question, and, construing it in the light of the testimony in the record on the subject, I do not think it sufficiently identifies the property. The bill seeks a foreclosure as to lots 13 and 14 of block 1 in Burbridge’s addition to Jacksonville, treating these lots as the lots intended to be mortgaged by Buckman by his mortgage of “lots 13 and 14 of Burbridge’s addition,” and the bill alleges that these were the only lots owned by Buckman when he executed the mortgage answering the description contained in the mortgage, and that this must have been known to Cook when be bought the property. And the contention of complainant is that there was enough in the record to put Cook upon notice and inquiry, and to charge him with notice of what lots were intended by the description in the. mortgage. The bill prays for a decree of foreclosure against these lots as they are described in the bill, and complainant suggests that if a reformation of the mortgage is necessary, the court will grant such reformation in the decree of foreclosure, the prayer for general relief being sufficient for that purpose. As my opinion is that the mortgage is not sufficiently certain to identify this property, a reformation is needed to carry out the specific relief prayed, which is foreclosure and sale. The mortgagee may ask for a reformation of the mortgage in a bill to foreclose it. 1 Jones, Mortg. §§ 98, 99; 2 Jones, Mortg. §1464; Alexander v. Rea, 50 Ala. 450. A mistake in the description of the land may be corrected as between the parties to the mortgage, and courts of equity can grant relief as against
The mortgage which is here sought to be foreclosed covers eight acres of land owned by one Jos. E. Dritina, purchased by him from the mortgagor, Buckman, in October, 1885, being about 18 months subsequent to the execution of the mortgage by Buckman to Hayes. The facts are that in 1880 the title to these eight acres was in one H. Bisbee, and he contracted to sell them to one Whitney, allowing him two years within which to pay the purchase money. • In 1881, not having paid the purchase money, Whitney contracted with Buckman to sell to him this land, giving a year for payment. In 1883 Bisbee, at Whitney’s request, executed a deed to Buckman, but retained it in his possession subject to Buck-man paying him $900 for the land. In' 1884, not yet having paid Bis-bee, and without title or possession of the land, so far as the evidence shows, Buckman gave Hayes the mortgage, and it was recorded. In 1885 Buckman showed Dritina the land, and proposed to sell it to him, giving him no notice of the mortgage, but furnishing him an abstract showing the title in Bisbee, telling Dritina that the property was Bisbee’s, and that he (Buckman) wished to make a commission on the sale. Dritina, after some delay, bought the land, paying Buckman $1,500 for it, and at the same time received Buckman’s deed to him and Bisbee’s unrecorded deed of April, 1883, to Buckman, (both warranty deeds,) which he placed on record. It appears from the evidence that Dritina gave Buckman the $1,500. Out of this Buckman paid Bisbee the $900, and then received Bisbee’s deed, and executed and delivered his own deed to Dritina, as aforesaid. My opinion is that on the undisputed facts Buckman had no-mortgageable interest in the land at the time he executed the mortgage, and that Dritina is not bound by the record of the mortgage made by Buckman before he had title to or a mortgageable interest in the land, and, as it is conceded that the statute of 6 Anne does not apply in this case, it follows that complainant is not entitled to relief as against defendant Dritina and his grantees, defendants Gifford and Pearce. 1 Jones, Mortg. § 576, and note 3; 2 Pom. Eq. Jur. § 761. The deed of defendant Mathews to a portion of the 400-acre tract of land is subject to the-first mortgage of $1,500, but anterior to second mortgage of $6,000. If the 400 acres bring more than enough to satisfy the first mortgage, this defendant’s lot will be let out. If not, it must be sold. A decree will be entered in accordance with the foregoing opinion.