Cowley v. Shelby

71 Ala. 122 | Ala. | 1881

SOMEBYILLE, J.

-The contract between the appellant Cowley and Simmons, by which the latter agreed to put Cowley in possession of the lands in controversy by a given date, was res inter alios so far as concerns the appellee, Shelby. It is not shown that Shelby had anything whatever to do with this agreement, and it can not be made the basis of any claim of damages against him in this suit.

It was very clearly not competent for the appellant to prove by parol evidence that he intended to mortgage an interest in the land, described as a tract containing one hundred and sixteen acres, different from that specified in the mortgage executed to Shelby by him, dated August 4,1817. This would be a most manifest violation of a well established rule, which forbids the admission of extrinsic evidence for the purpose of varying the legal effect of written instruments. The mortgage itself must be the sole expositor of its own terms, as between the. parties to it at least.-1 Brick. Dig. p. 865, § 866 et seq.; Cunningham v. Milner, 56 Ala. 522.

Where a mortgage is given on real estate, the mortgagor is regarded as the owner of the fee, as against all the world except the mortgagee.-Denby v. Mellgrew, 58 Ala, 147. In cases where more than one mortgage is given on the same property, the second or junior mortgagee acquires all the rights of the mortgagor, subject to the condition of his mortgage, and to the pre-existing incumbrances, and when the latter are removed, it is as if they had never existed. The discharge of such prior incumbrances, therefore, must enure to the'benefit of the junior mortgagee, and not to that of the mortgagor, althonglx he may himself discharge them.-Gardner v. Morrison, 12 Ala. 547; 1 Jones on Mortg. § 679, § 676, and § 11. Even where the junior mortgagee removes such incumbrances, in order to protect his own title, there can be no redemption of the mortgaged property by the mortgagor without reimbursement. Grigg v. Banks, 59 Ala 311.

The notes copied in complainant’s bill were sufficiently identified as being the same intended to be secured by the mortgage. They were identical in dates, amounts, in the names of the maker and of the payee, and contained a recital that they were given for the purchase-money of laud. It is true that the mortgage purported to be given to secure notes executed to Shelby as trustee, etc., and in the notes themselves the word as is omitted before, the word trustee, rendering the phrase following the payee’s name a mere descri/ptio /persones,. This omission was, however, supplemented, if, such was needed, by an averment on the part of the trustee, Shelby, disclaiming any individual or personal interest in the notes. This was explanatory of possession, and admissible evidence in behalf of the trustee as a declaration against interest.-Chambers v. Falkner, 65 Ala. 448.

It is needless to consider the objections to evidence interposed by the appellant, as they would be unavailing to affect this decision, even if they were well taken.

The decree of the chancellor is affirmed.