Davis & Son v. Milligan

88 Ala. 523 | Ala. | 1889

SOMERVILLE, J.

We discover nothing in. the testimony to challenge the bona fides of the mortgage debt due to the complainants by the defendant T. A. Davis, and the mortgage by which it is secured seems to be equally free from any objection affecting its validity. The foreclosure prayed for in the bill must, therefore, be decreed, unless the complainants, as mortgagees, are in an attitude to estop them in equity from asserting the rights secured to them by the mortgage. It is contended by the defendant, S. N. Milligan, and his sub-vendee, M. G. Milligan, who claims under him, that the complainants were apprised of the fact that he was about to purchase that portion of the mortgaged property known as the “Choccolocco Lot,” without any actual knowledge on his part of the existence of the mortgage incumbrance on it, and that they neglected to hunt him up and inform him of the mortgage.

We may admit Milligan’s ignorance of the existence of this mortgage — i. e., that he had no actual knowledge of its existence, although he is shown to have attested its execution, and was the justice of the peace before whom the mortgagor, T. A. Davis, acknowledged such execution. There is no presumption from these facts that he was apprised of its contents. It is no part of the duty, nor is it the habit of officers, or of attesting witnesses, under such circumstances, to read the conveyance attested by, or acknowledged before them.

But the mortgage was duly recorded, and this was constructive notice of its existence and contents -to all subsequent purchasers. It is not shown that the complainants were guilty of any fraud or bad faith in the matter. No inquiry was made of them, as to their claim of title. It does not even appear that they had any suitable- opportunity to give personal notice to Milligan. They were under no duty to go about to institute a search for him, and warn him to examine the records where the mortgage was recorded. It was his duty to do this, as an act of ordinary prudence; and had he done so, he could easily have escaped the disaster of his error. If it be claimed that he was misled by the mortgagor, T. A. Davis, it is not shown that the mortgagees in any manner participated in such culpable conduct.

It is claimed that inasmuch as one of the complainants, J. E. Davis, obtained letters of administration on the estate of John Davis, deceased, one of the debtors on the mortgage debt, this operated as an extinguishment of the debt by operation of law. This is upon the theory, that the right to demand, and the obligation to pay, co-existed in the same person. —Eatman v. Eatman, 82 Ala. 223. The debt, however, was not due to J. E. Davis, but to J. E. Davis & Son, a partnership, of which he was a member. There was no such identity of person, therefore, in the debtor and creditor as to bring in operation the pi'inciple invoked. It has no application to this case.

The chancellor, in our opinion, erred in the decree rendered dismissing the bill. The decree of dismissal will be reversed, and a decree rendered in this court, declaring the complainants entitled to the relief prayed, and foreclosing their mortgage.

Reversed and rendered,