Scott v. Thomas, 100 So. 778

100 So. 778 | Ala. | 1924

The decree appealed from required reformation of the description of lands mortgaged, and a foreclosure was ordered to enforce payment of the debt secured thereby.

The general rule as to erroneous description of property as contained in a mortgage is stated in 27 Cyc. p. 1209, as follows:

"If the description of the property in a mortgage wholly fails to identify that intended to be incumbered, or by mistake is so expresed as to be applicable only to a different tract or lot, so that it could not be enforced without invoking the aid of a court of equity to reform it, the record of it is not notice to subsequent purchasers or lienors. But if the description is merely ambiguous or incomplete, it is sufficient to put such persons on inquiry; and if it is apparent from the face of the record that there is a mistake or misdescription which is capable of being corrected from other parts of the same instrument, or other details of the same description, it operates as constructive notice."

See, also, Jones on Mortgages, § 490; Hendrie, etc., Co. v. Continental Coal Co., 67 Colo. 350, 184 P. 360; Zurfluh v. Hartman, 103 Wn. 452, 174 P. 963.

On this subject our court declared in Gill v. More, 200 Ala. 511,515, 76 So. 453, 457:

"Our court has held that a description in a recorded mortgage may be good as between the parties, and yet insufficient to deprive a purchaser from the mortgagor of his bona fide right to the mortgaged property, acquired without notice (Stickney v. Dunaway, 169 Ala. 464, 53 So. 770); that if property conveyed is not so described as to identify it with reasonable certainty, there is nothing to put the searcher of the record proper on inquiry, and such record will not give constructive notice of the conveyance (Hickey v. McDonald Bros., 160 Ala. 300,48 So. 1031); that the name of 'A. W. Dixon' was not notice that the mortgage so recorded was executed by 'J. W. Dixon' (Johnson v. Wilson Co., 137 Ala. 468, 34 So. 392, 97 Am. St. Rep. 52); that a record disclosing one 'McCinney' as the mortgagor was not notice to a purchaser of the mortgaged property from 'McKinney' (Grimmer v. Nolen, 146 Ala. 466,40 So. 97); that the record of a mortgage signed 'W. H. McDonald' is not constructive notice that the same was executed by 'W. N. McDonald' (First National Bank of Opp v. Hacoda Mercantile Co., 169 Ala. 476, 53 So. 802, 32 L.R.A. [N. S.] 243, Ann. Cas. 1912B, 599); that the registration of a prior mortgage purporting to have been executed by 'J. A. Johnson' did not impute constructive notice to a subsequent mortgagee of one who signed the name as 'J. T. Johnson' (Ozark City Bank v. Planters' Merchants' Bank, 73 So. 72¹)."

The description in the mortgage exhibited by the pleadings was merely ambiguous and incomplete, yet sufficient to put on inquiry a person dealing with the property in question. The area is stated in the description, the location of the land indicated in the quarter sections of section 24, township 7 south of range 6 east. It being duly filed for record in the probate office of the county where the land lay was sufficient to charge with constructive notice and to place upon respondent the duty of inquiry. Moreover, the evidence shows that respondent knew that L. A. Taylor purchased from his father, A. J. Taylor, the land upon which he was giving Mr. Scott the mortgage; that said purchaser made a mistake in the description in the first deed to L. A. Taylor, and appellant had that description corrected by making a second deed; that he either read or had read to him the description in the deed from A. J. to L. A. Taylor. That description in the first deed, which respondent had corrected by the second deed, was that contained in complainant's mortgage, as shown by the testimony of B. F. Gilbert. These facts, together with the record notice of complainant's mortgage, were sufficient to warrant the relief granted by the trial court.

Appellant admits that complainant's mortgage was filed for record before that to respondent, and that the same was not promptly indexed. If this be true it was not complainant's fault, and did not affect the constructive notice which its filing for record gave under the statute. The mortgagee had done what the law required of him by lodging the mortgage with the proper officer in the probate office for recordation. This was sufficient. Mr. Scott recognizes this in his testimony. Town of Carbon Hill v. Marks, 204 Ala. 622, 625,86 So. 903, and authorities.

The decree will be corrected as to the calculation of interest from its due date, November 1, 1921, as shown by this record, and not from 1920, as calculated by the trial court. Southern States F. C. I. Co. v. Brannon, 178 Ala. 115,59 So. 60, Southern States F. C. I. Co. v. Tanner, 180 Ala. 30,60 So. 81; Southern States F. C. I. Co. v. Cromartie,181 Ala. 295, 61 So. 907. Interest attaches as an incident to the debt or money demand, and begins to run after maturity, in the absence of a contrary stipulation in the instrument evidencing the debt. Zimmern v. Standard Motor Car Co.,205 Ala. 580, 88 So. 743. The evidence of the debt and mortgage in question did not stipulate for interest before maturity on November 1, 1921.

Appellees' counsel consent that the decree be reduced by the amount of this excess interest of $24.03. The amount of the decree is reduced by said sum. The appellees will be entitled to interest on the reduced amount of the decree from the date of its rendition, but they are not entitled to the statutory penalty. The costs of the appeal are divided between the respective parties.

Corrected and affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

¹ 197 Ala. 427.