Christopher v. Shockley

Feb 1, 1917
Reporters:
, ,
Before:
Somerville
SOMERVILLE, J.

(1) So far as notice to subsequent purchasers is concerned, the only duty resting upon a mortgagee is the due registration of the mortgage in the office of the probate judge, which is conclusive notice to all the world of everything that appears from the face of the mortgage.

Eliminating from consideration those matters which are not material, the only issue in this case — the issue which must control the result — is whether or not the complainant, Mrs. Christopher, had knowledge or notice of the fact that the respondent, Wise, was claiming to own the mortgaged land in his own right and in hostility to her mortgage, during the period of his alleged adverse possession. If she had such knowledge, or its legal equivalent, then Wise’s possession was adverse as to her, and ripened into a title paramount. If she had not such knowledge, or its legal equivalent, then Wise’s possession, however long con*683tinued, was not adverse to complainant’s rights as mortgagee, and could not ripen into a title paramount.

What is necessary to constitute an effective adverse possession by a mortgagor or his alienee, as against the mortgagee, has been often declared by this court. Prima facie, a mortgagor or his alienee holds in subordination to the title of the mortgagee, and not adversely thereto. “Until foreclosure, the mortgagor owns the equity of redemption. This he may alien or transfer to another. It cannot be known, without some overt act, throwing off allegiance, that the mortgagor or his vendee is not quietly enjoying the possession of the equity of redemption, at all times acknowledging the rights of the mortgagee.”—Boyd v. Beck, 29 Ala. 703, 714; Byrd v. McDaniel, 33 Ala. 18; Coyle v. Wilkins, 57 Ala. 108.

In harmony with previous decisions, this court said in State v. Conner, 69 Ala. 212, per Stone, J.: “When a mortgagor, after the execution of the mortgage, makes sale of the mortgaged premises to a third person, who has notice, actual or constructive, of the prior mortgage, the presumption is that he sells only the interest remaining in him, which is an equity of redemption. And, as the mortgagor does not hold adversely, but in subordination to the title of the mortgagee, the presumption is that the alienee * * * holds in the same right, and asserts no higher, or independent title. So, if such transaction be left to its own legal intendments, the presumption is that the alienee, like his vendor, holds in recognition of, and subordination to, the prior and paramount title of the mortgagee. This, without more, is not an adverse holding, which will ripen into a title at the end of 10 years of continued occupation. To convert such a possession into an adverse holding, there must be a renunciation or disclaimer of the mortgagee’s right, and that renunciation must be traced to his knowledge. Till that is done, such possession is not regarded as adverse.”

(2) This means that the adversely holding mortgagor or his alienee must either expressly disclaim subordination to the mortgage, or else he must show acts of insubordination, known to the mortgagee, which are inconsistent with further recognition of the mortgage title, and which fairly suggest to the mortgagee the hostile intention of the occupant. Manifestly this is not accomplished by mere exclusive possession and claim of title as against the world in general, nor by any of the customary acts *684of ownership and enjoyment. For the mortgagor or his alienee, as owner of the equity of redemption, is entitled to such claim, possession, and use as against the world in general; and, as against the mortgagee, those acts import no change from-a permissive to a hostile- possession. Hence the notice to the mortgagee must be specifically of a holding that is hostile to his mortgage.

(3) In this, as in all other cases of adverse possession, the burden is' upon the claimant “to show, not only the fact of possession, but to show also that his possession was adverse, and that it contained, or carried with it, all the elements requisite or necessary to make the possession adverse.”—Alexander City, etc., Co. v. C. of Ga. Ry. Co., 182 Ala. 516, 62 South. 745.

(4) In the instant case the only facts brought to the knowledge of the complainant mortgagee, directly or indirectly, are that Srockley had sold the land to Wise in December, 1898, and that Wise was living on it for several years thereafter. This falls very far short of charging her with notice of any repudiation of the mortgagee’s right by Wise, and hence his possession never became adverse to her.

(5) The record presents no issue of either laches or estoppel. The evidence shows that the mortgage debt was kept alive by the mortgagor’s recognition thereof, although more than 20 years had elapsed since its creation.—Shockley v. Christopher, 180 Ala. 140, 60 South. 317. And whatever may have been the mortgagee’s intentions as to the enforcement or abandonment of her claim, it does not appear that she has ever discharged the debt or released the land from the mortgage, or done anything to deceive Wise with respect to. its existence. As already pointed out, she was not required to do anything in this regard except to register the mortgage for recordation. A purchaser who ignores such notice cannot visit his ignorance and loss upon the prior mortgagee.

Our conclusion is that the complainant is entitled to the relief prayed, the foreclosure of her mortgage, and that the trial court erred in its decree denying relief and dismissing the bill of complaint.

Let the decree be reversed and the cause remanded, for further proceedings in accordance with this opinion.

Reversed and remanded.

Anderson, C. J., and Mayfield and Tho'mas, JJ., concur.