85 So. 388 | Ala. | 1920
Lead Opinion
Appellant's perfect equity, except as against a bona fide purchaser for value without notice, cannot be denied. The only question, then, is whether appellee, the Union Bank Trust Company, is such purchaser. The bank deraigned title as follows: Cowart, owning the property at the time, mortgaged it to appellant to secure a loan of money. After Cowart defaulted in the payment of his debt, appellant, acting on the representations of Martin (who had negotiated the loan for her), in order to facilitate his collection of the debt, by the instrument shown in the report of the former appeal (
That appellee paid value and had no knowledge or actual notice of appellant's claim is well established and is not controverted. Accepting Martin's statements, the bank made no investigation of his title. Had it gone to the records, it would have found appellant's unsatisfied mortgage; but it would have found also her assignment and quitclaim to Martin and the subsequent proceedings, all in due form and showing title in Martin. But appellant contends (1) That the auctioneer's deed to Martin should be ignored as ineffectual for any purpose — this for the reason that the auctioneer was by operation of law a special agent, authorized to sell only upon payment of the purchase money, and every person in the world claiming through such deed was required at their peril to take notice of his want of power; and (2) that all purchasers claiming through Martin were put on notice of appellant's equity by the fact that he held under a quitclaim. These contentions may be answered by the same considerations. Appellant's assignee held under a mortgage with full covenants of warranty. The quitclaim, superadded to the assignment, was no doubt inspired by the decision in Sanders v. Cassady,
Our judgment is that a due observance of the rights of an innocent purchaser requires that the present status of the title be not disturbed.
Affirmed. *295
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.
Addendum
By way of reply to appellant's argument on rehearing, which lays its stress at a new point, we add the following brief elaboration of what has in effect been said heretofore: Upon analysis the argument against the opinion in this cause simmers down to just this: "The deed by the auctioneer to Martin must be eliminated as a void paper, because the auctioneer was a special agent" — by which, as the context shows, appellant means that he was a special agent for herself — "with no estate, and without power to convey," meaning without power to convey unless and until the amount of the bid was paid to appellant. There is no question that Martin held the legal title to the land in trust for appellant, and if this controversy were between appellant and Martin, appellant's premise, stated above, would need to be conceded, and thereupon appellant's conclusion would follow; but, unfortunately for appellant, that is not the true posture of the case, for while Martin, as between appellant and himself, if we could view the case from that standpoint exclusively, would be held to have acted throughout as trustee for appellant, still it cannot be denied that, under our decisions, he as assignee of the mortgage held the legal title to the land. Welsh v. Phillips,
Application overruled.
ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.