122 Ala. 545 | Ala. | 1898
— We may waive consideration of all other questions presented in this record, except the one, that complainant is estopped to claim any rights as growing out of the Orowe mortgage to II. H. Brumbacli.
It was shown that (J. D. Woodson was the president of the Sheffield hank at the time Brumbacli made application to the defendant for the loan and that T. L. Benlmm was its cashier. It also appears, that the defendant had in Sheffield at the time a local board of appraisers, one of whom Avas the said Benham; that he Avith others having the application of said Brumbacli for the loan to the association in writing before them stilted that the condition of the property was truly set forth by the applicant in his statement Avhicli accompanied their report; that the loan was a desirable one for the association to make and they recommended it to be made. The application shoAved the $4,000 mortgage, and the proof is abundantly satisfactory, that the OroAve mortgage and none other Avas referred to in the application. Here Ave have, then, the indubitable proof that the Sheffield bank, through this officer, Avas engaged in aiding to procure this loan to be made by respondent, that he neither said nor- communicated anything to the lendee about any claim his bank had on the property he Avas recommending it to take a mortgage on to secure the loan, which loan, as appears, the borroAVér, Brumbacli, Avas seeking in the interest of the bank. Moreover, Chas. D. Wood-son, the president of said bank, on the 16th -September, 1889, wrote a letter to the respondent association, Avhicli appears in the transcript, telling it that the stockholders in Sheffield were very much dissatisfied in the Avay the association treated them in getting loans, and complains especially of Brumbach’s not getting the money on his application. He and the cashier both knew of this application, were insistent for the loan to be made, for purposes not left open to doubt, and never disclosed that their bank had any claim or lieu on the property to be mortgaged to the association to secure the loan. KnoAAdedge on their part of this proposed loan, and their conduct to procure it to be made, was the knowledge and act of the bank. ■ The corporation cannot
It is a just and well recognized principle, that “He who is silent when conscience requires him to speak, shall be debarred from speaking when conscience requires him to keep silent;” and again, “When a party negligently and culpably stands by and allows another to contract on the faith of an understanding which he can contradict, he is afterwards estopped from disputing the facts in an action against the person whom he has assisted in deceiving, upon the principle, that between innocent parties, he who causes the injury must suffer.” — 2 Her. on Est., § § 937, 938. Or, to state the principle still more pertinently to the facts of this case: “If one having an incumbrance or security upon an estate conceals his interest, and thereby enables the owner to procure an additional advance upon it, he must be postponed to the second incumbrance.” — 1 Story Eq., § 390; Chapman v. Hamilton, 19 Ala. 124; Ashurst v. Ashurst, 119 Ala. 219.
The mortgage of respondent is superior in equity to that of the bank through which complainant claims. The complainant can claim no greater rights in opposition to respondent than the bank could, if it were suing. I f the bank in such case would be estopped to set up the Crowe mortgage as superior to that of respondent, the complainant deriving his alleged claim through the bank, is also estopped. There is no pretense of any fraud, but the utmost good faith on the part of the respondent in the transaction is shown. — 3 Brick. Dig. 448, § 29.
Affirmed.
