Simon & Marks v. Sewell

| Ala. | Dec 15, 1879

BBIOKELL, C. J.

The assignments of error are numerous, but they are all reducible to, and depend upon that which, the counsel for the appellants very properly say, is the main question : whether, in the absence of an agreement, express or implied, a mortgagor is bound to refund the mortgagee the money he has expended in registering the mortgage. Before a mortgage is capable of registration, execution by the mortgagor, including delivery, must have been complete; all dominion over it must have been parted with by him; every act he is required to perform, to render it obligatory on him, and valid and operative as a security and conveyance to the mortgagee, must have been performed. Though it is never registered, so far as he, or those who may succeed him in right or estate, other than bona fide purchasers, or creditors acquiring a lien, without notice, may be concerned, registration is not essential to the full and complete operation of the mortgage. The mortgagee may or not, at his election, cause the mortgage to be registered. Registration is for his benefit only, and for his protection against the possible claims of subsequent bona fide purchasers, or creditors acquiring a lien without notice. As it is for his benefit and protection, and it rests wholly in his election whether registration is had, he ought to bear the burthen of it. If he desires to cast it on the mortgagor, he may exact a promise from him to pay its costs.

We find no error in the ruliugs of the City Court, and the judgment is affirmed.