Howser v. Cruikshank , 122 Ala. 256 ( 1898 )

TYSON, J.

— Unless the case made by the original and amended bills can be differentiated upon principle from the case of The Farmers Savings and Building and Loan Asociation v. Kent & Sabotka, 117 Ala. 624, in which this court distinctly and clearly recognized the doctrine that where a mortgagor after the execution of the mortgage, conveys different parcels of the mortgaged property to different persons at different times, by warranty deeds which contain no reference to the existence of the mortgage, the portion of such premises retained by the mortgagor is primarily liable for the whole of the mortgage debt, and must be first sold to satisfy the mortgage; and if this portion proves insufficient, resort may be then had to the parcels conveyed, by selling them in the inverse order of their alienation, there was no error in the decree overruling the demurrers to the bill.

The two facts relied upon by appellant to relieve this case -from the influence of this doctrine, are, first, that the complainant acquired title to a portion of the premises under a warranty deed from the mortgagor, who was her father, reciting a consideration of one dollar paid and natural love and affection; second, that respondent acquired title to the remaining portion of the premises by mortgage from the original owner, subsequently to the making of the deed to the complainant, which had been foreclosed before the filing of the bill.- — -Pomeroy, 3 vol., section 1225, in speaking of this doctrine says: “It is purely of equitable origin, and is not an absolute rule of law'; and if the peculiar equitable reasons upon which it rests are wanting, it ceases to- operate. Whether it does or does not apply to any particular case may be certainly determined by a careful consideration of the following principles. The doctrine in its full scope and operation primarily depends upon the relation subsisting between the mortgagor or other owner of the entire mortgaged premises, and his grantee of a parcel of the land. This relation, in turn, results from the form of conveyance, which being a warranty deed, or equivalent to a warranty, shows conclusively an intention between the two that the grantor is to assume the whole burden of the incumbrance as a charge upon his own parcel Avhile the grantee is to take and hold his portion entirely free.”

Testing the deed under 'which the complainant claims by this principle, let us see, if it is of that character as shoAvs conclusively an intention of the grantor to assume the whole of the burden of the mortgage primarily executed by him as a charge upon his portion and complainant to take and hold her portion free from the mortgage lien. The deed is one of bargain and sale, and covenants with the grantee, that the grantor is seized in fee-simple in the premises, and that they are free from all encumbrances, and that the grantor has a good right to sell and convey the same, and binds him, his heirs, executors and administrators to warrant and defend the title to the land conveyed to complainant, her heirs, etc., against the lawfulclaims of all persons. The consideration recited, as stated above, is for natural love and affection and the sum of one dollar, and this is the infirmity pointed out by appellant’s counsel and insisted upon which destroys the effects of the covenant and warranty clauses of said deed and deprives it of the character which impresses conveyances under which this equitable doctrine can be invoked. It will be observed that i the whole doctrine rests upon the intention of the parties ; to be gathered from the entire instrument or conveyance. That the consideration expressed in this deed will sup- ! port it inter sese and their privies as a conveyance can hardly be denied. In Houston v. Blackman, 66 Ala. 559, it is said: “In deeds of bargain and sale, the expression of any, the slightest consideration — for instance a pepper corn even — will support them as between the parties. The only use and operation of the expression of a consideration or the introduction of a section of a clause reciting a consideration, is to prevent a resulting trust to the grantor, and to estop him from denying the making and effect of the deed for the uses therein declared.” And that the grantee could maintain an action for a breach of warranty against the grantor, • in the event of a breach, is also indisputable. — 8 Am. & Eng. Ency. Law (2nd ed.) 173; Walker v. Crews, 73 Ala. 412; 2 Devlin on Deeds, § 810. The measuie of her recovery for such a 'breach is not, in our opinion, the test by which the question under consideration is to be determined. It would seem, that from the plain words of the deed, that complainant has a right to invoke this equity of exoneration, unless there is some impediment arising out of the relations of the respondent to the transaction rendering it inequitable for her to do so. Does the fact that the respondent became the owner of the first mortgage by transfer and assignment after complainant acquired the deed and subsequently to the execution of the deed, her grantor executed-to the. respondent a mortgage upon the residue of the lands to the respondent which he has foreclosed, in any manner impair her equity? It is against the holder of the first mortgage' that this equity exists, and' by what process of reasoning it may be said to be cut off by the second mortgage of a portion of the premises acquiring the title of the first mortgagee, we are unable to perceive. She was in no sense a party to the assignment or in any wise interested in it: It was a matter of indifference to her who was the owner of the first mortgage, and of no consequence to her who held it. As to the rights of the respondent under’ the mortgage made to him upon the residue of the property, he acquired no greater rights than he would have acquired under a deed from the mortgagor. By this mortgage the mortgagor conveyed his equity of redemption subject to all equities between him and complainant of which respondent had notice either actual or constructive. The complainant being at the time in the possession of the land conveyed to her, and the deed under which she held then being of record, the respondent had notice of her equity when he took the mortgage. 3 Pomeroy Eq. Jur., § 1225, and note; Northwestern Land Association v. Harris, 114 Ala. 468; 2 Jones on Mortgages (5th ed.), § 1620; 2 Leading Cas. in Eq. 297.

Having notice of complainant’s equity when he took the mortgage, and when he purchased the property at the foreclosure sale, under the power therein, the rights acquired by him were subject to the right of the complainant to have the land sold in the inverse order of its alienation. — Farmers Sav. & B. & L. Asso. v. Kent & Sabotka, 117 Ala. 624, supra; Burton v. Henry, 90 Ala. 281; Aderholt v. Henry, 87 Ala. 415; Prickett & Maddox v. Sibert, 75 Ala. 315; M. M. D. & M. Ins. Co. v. Huder, 35 Ala. 713; M. & P. Bank v. Dundas, 10 Ala. 661; 2 Pomeroy Eq. Jur. § 1224; 2 Jones on Mortgages, § 1620.

Complainant in her bill prays to redeem before foreclosure the lands conveyed by the first mortgage now owned by the. respondent. This she has a right to do, having acquired an estate in a part of the mortgaged premises by deed from the mortgagor. — Butts v. Broughton, 72 Ala. 294; 2 Jones on Mortgages (5th ed.),. § 1055; 3 Pomeroy Eq. Jur., § 1220; Jones v. Matkin, 118 Ala. 341.

The decree overruling the demurrer is affirmed.