Miller v. Griffin, 102 Ala. 610

Miller v. Griffin

102 Ala. 610 | Ala. | 1893

COLEMAN, J.

The appellees filed their bill to foreclose a mortgage executed by Anderson & Co. upon certain real estate described in the bill. The bill avers that there was a boiler and engine and saw mill on the land which was apart of the realty, and included in the mortgage. This mortgage was executed June 19th, 1889, and filed for record on the 18th day of August, 1889. J. W. Miller was made one of the parties defendant. He answered and filed a cross-bill, setting up a prior mortgage executed to him by one A. B. Hamlet and J. M. Anderson, on the 12th day of June, 1884, on the engine, boiler and mill and fixtures. This mortgage was duly recorded in the probate court of Bibb county, in which county the property at that time was situated. The answer and cross-bill also set up a subsdquent mortgage, executed on the same property to Miller by Anderson- & Co. on the 22d of July, 1889, which was duly recorded on the 24th of July, 1889. It will be seen from this statement of facts,- that the mortgage to complainants, though prior in point of date, to the second mortgage to J. W. Miller, was not filed for record nor recorded within thirty days from its date, and that the second mortgage to Miller was executed and recorded before the registration of complainants’ mortgage. Section 1810 of the Code provides that mortgages to secure a debt created at the date thereof are void as to purchasers for a valuable consideration, mortgagees and judgment creditors, having no *614notice thereof, unless recorded within thirty days from their date. According to the evidence, J. W. Miller had no notice of the existence of the mortgage to complainants, at the time of the execution to him of this mortgage of July 22d by Anderson & Co. Under the foregoing section of the Code, J. W. Miller was entitled to priority. Independent nf this principle the mortgage of complainants upon boiler, engine and mill is seóondary to that of Miller. The evidence shows that Miller sold this property to Hamlet and Anderson and took the mortgage of 1884 to secure the payment of the purchase money. Subsequent to this time Hamlet sold his interest to Anderson & Co., of course subject to the mortgage to Miller. On the 22d of July, 1889, there was ascertained to be due on this debt $715. On that day J. W. Miller released Hamlet and took from Anderson & Co., the purchasers from Miller, their note for the balance of the purchase money and extended the debt, and took .from them the mortgage of July 22d, 1889, on the same property. We do not think under the evidence that the taking of the second mortgage was either a payment of the debt or a discharge of the lien of the first mortgage to Miller. It was rather intended as a renewal and extension of the same debt, and this notwithstanding the endorsement on the mortgage, “settled by renewed note and mortgage. ” The use of the word, “settled,” renders the meaning somewhat obscure, but we are of opinion the meaning and intention of the parties was to have a settlement with Hamlet, and then to renew and extend the debt, and this was done by the new note and mortgage, signed by Anderson & Co., the purchasers from Hamlet. Anderson was one of the original debtors. Anderson and Miller both swear, it was intended as a renewal and extension of the old debt, and there is no evidence to the contrary, except a mere inference from the word ‘ ‘ settled.” — Boyd v. Beck, 29 Ala. 703.

The evidence is positive that complainants had actual notice of the existence of the mortgage of 1884, or of facts calculated to put them on enquiry, which would have led to knowledge of its existence at the time of the execution of the mortgage to them. It is expressly stated in the mortgage that'*‘this is the second mortgage on the same mill,” and the evidence shows that Anderson stated to them that the property was encumbered.

*615There is no merit in the contention that the boiler and engine was a part of the freehold. The mill was not on the land, when the agreement for the sale and purchase of the land was made between plaintiffs and Anderson & Oo. The entire plant at that time was in Bibb county. The engine, boiler and mill fixtures were under mortgage at the time of its removal to Shelby county. Although a building, machinery or mill may be so attached to land as to become a part of the realty, parties by contract may sever it, and convert such property into a chattel; and where a mortgage is given upon a chattel, the mortgagor can not, by annexing or attaching such property to land, defeat the mortgage lien. — Foster v. Mabe, 4 Ala. 402; Vann v. Lunsford, 91 Ala. 576; Wood v. Holly Manufacturing Co., 100 Ala. 326.

The court erred in decreeing that the mortgage of Miller was subordinate to that of complainants. As to the property embraced in the mortgage to Miller, he was entitled to priority. The liability of complainants for the use of the mill and engine is not raised by the pleadings and it is unnecessary to consider this question.

Reversed and remanded.