Sutley v. Dothan Oil Mill Co. , 235 Ala. 475 ( 1938 )

It is insisted that Sutley had notice sufficient to subordinate his claim to the unrecorded deed and to take him out of the protection of section 6887, Code, because after the judgment was rendered and before it was recorded, the Windhams executed another deed, and recorded it, to Hicks, conveying other land but containing a reference thought to be sufficient to charge Sutley with notice of the unrecorded deed to which we have referred.

There are several reasons why it does not have that effect in our opinion so as to prevent the operation of section 6887, Code. One which is all sufficient is that it was executed and recorded after the judgment was rendered, though before a lien on the judgment was created. That section protects a judgment creditor who had no notice when his judgment was rendered, not when the lien was created. Chadwick v. Carson, supra; Hall v. Griffin, supra; Wiggins v. Stewart, supra; Winston v. Hodges, 102 Ala. 304, 309, 310, 15 So. 528.

It is different from section 6918, Code, in that respect which protects the "title of creditors," and as to which the effective date of notice is when the lien is created, not when the judgment was rendered. Guin v. Guin, supra; Preston v. McMillan, supra.

But the contention is further made that the deed conveying the 160 acres in January, 1931, and recorded then, being prior to the record and lien of Sutley's judgment, and the fact that though the mortgages on the 20-acre tract were thereby canceled and released, all operated to give Sutley notice of the right of subrogation which the corporation claimed, to those mortgages on that land, and was sufficient under section 6918, Code, because they occurred prior to the record of the judgment.

But we do not see that the record of the mortgages and that they appeared unsatisfied gave notice that the corporation had in some manner contributed to its satisfaction as to be entitled to the equitable right to have them kept alive for its benefit. Sutley may rely on the satisfaction and release of the mortgages, which was in fact the agreement, however that agreement may be evidenced, and whether he had notice of it or not. His claim to the benefit of that agreement in fact unknown to him, is not notice to him that the corporation released its asserted equity in another tract to help get the release under such circumstances as that a court of equity will keep the mortgages alive for it, though they were agreed by all to be cancelled and satisfied.

Of course, if the deed executed by Windham to Hicks in January, 1931, had the effect of giving notice of such equitable right, it would be sufficient to that end, and Sutley would not be protected under section 6918, Code. That deed conveyed 160 acres of land — none of which is here involved.

Sutley did not sell that land under his execution, makes no claim to it now, and the deed in question is not in the chain of the title to any land which he does claim. He is bound to take notice of what appears on the face of the deeds in the chain of his title, or in respect to the land which is in question executed by one who has a record interest in it, but he is not bound to inquire into collateral circumstances growing out of conveyances of land which he does not claim. Burch v. Carter, 44 Ala. 115; Lehman, Durr Co. v. Collins,69 Ala. 127; Pearce v. Smith, 126 Ala. 116, 28 So. 37; Scotch Lumber Co. v. Sage, 132 Ala. 598, 32 So. 607, 90 Am. St. Rep. 932; Tennessee C., I. R. Co. v. Gardner, 131 Ala. 599,32 So. 622; Brannan v. Marshall, 184 Ala. 375, 63 So. 1007, L.R.A. 1918C, 786; Gimon v. Davis, 36 Ala. 589.

But assuming that it gave him notice of its recitals, they are that the land which Hicks had deeded to the corporation was released from all claims by virtue of the mortgages to the bank. It did not recite the fact that the corporation had contributed to such satisfaction so as to be entitled to subrogation. But, on the contrary, the implication is that the mortgages are not to be kept alive for any purpose.

We did not undertake to analyze the evidence to see if it is sufficient to show that the corporation in good faith paid its money to the extent of $2,000 on account of the 160 acres of land for the Windham stockholders, and thereby acquired a right of subrogation to the mortgage on it, or some other sort of equity in it, and which equity it released, in consideration of the deed to it of the other tracts, and that such release entered into and formed a part of the consideration for the satisfaction of the mortgages on those two tracts, and that in doing so it was not a volunteer as to those tracts, since it had no other rights in them then to protect, but based our conclusion on the want of notice of any such right, if it existed, brought home to Sutley before he acquired his judgment lien.

Our conclusion in that respect has not been changed by the brief on this application, for the reasons we have stated.

Application overruled.

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