92 So. 897 | Ala. | 1922
Under the conditions shown by the record, the plaintiff, as transferee of a nonnegotiable note secured by mortgage, was entitled to foreclose the mortgage so soon as it was in default, and his note was entitled to priority of payment as against the other notes retained by the mortgagee. Knight v. Ray,
But, since the note was nonnegotiable, being for the payment of cotton only, the maker — the mortgagor — was entitled to notice of its transfer; and if, without such notice, he paid the note and discharged his obligation to the mortgagee, that payment was binding on the transferee, and effectually barred his right to proceed against the maker. Hart v. Freeman,
The evidence shows without dispute that the maker, Haygood, had no notice of the transfer of one of his notes to the plaintiff, Hand, and, further, that he satisfied his entire mortgage obligation, including all of the secured notes, by reconveying the mortgaged property to the mortgagee, who thereupon entered a satisfaction of the mortgage on the mortgage record. This was, of course, a fraud on the transferee, Hand. But since the mortgagee was the only proper person to receive payment, so far as the record showed, and since he was ostensibly clothed with the authority, and burdened with the duty, of entering satisfaction of record, any third person who might buy the land in reliance upon that entry, and without notice of the outstanding transferred note, would unquestionably be protected against the claim of the transferee, as he would against any other outstanding secret equity. Vann v. Marbury,
As against the mortgagee, Hardeman, it may, of course, be conceded that, when the land was reconveyed to him by the mortgagor, it remained subject to the lien of the note in the hands of the transferee, whose claim could not be defeated by Hardeman's entry of satisfaction. So, also, the lien would have been enforceable against the land in the hands of any subsequent purchaser from Hardeman, who was chargeable with notice of its existence. Vann v. Marbury,
As a matter of law, therefore, plaintiff was not entitled to recover against this defendant, whatever remedy he may have against Hardeman, and the instructions and rulings of the trial court were free from error. The several assignments of error relating to rulings on the evidence are not argued in brief, and must be treated as waived
Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. *311