McMullen v. Neal's Adm'r

STONE, J. The trust deed given by McMullen to Humphreys, trustee, is more than an indemnity to Bradley, Hammond, and Carmichael, his accommodation indorsers. It. is a security for the payment of the debt. The language of the deed is, “ should I make default in paying said bill at maturity, then the trustee may proceed, after giving thirty days’ notice, to sell to the highest bidder, for cash, the land before described, and with the proceeds pay said bill of exchange, with all costs, damages,” &c. This deed is a direct security to the holder of the bill of exchange; and when the bill matured, and was dishonored, he was not bound to wait until the indorsers were damnified, by forced collection of the money, by suit, or otherwise. He had the right then to demand that the trustee should execute the trust for his benefit; and if the trustee had refused, or failed to do so, he could, in equity, at once have coerced a sale of the property, for the payment of his claim. This right springs out of the very language of the trust deed; and if Neal had no agency in procuring the execution of the deed, and even knew nothing of its existence, this does not, in the least, impair or qualify his rights. The security existed, whether he knew it or not; and being for his benefit, the law presumes his acceptance of its provisions.—See Branch Bank of Mobile v. Robertson, 19 Ala. 798; Huckabee v. Billingslea, 16 Ala. 414; Ohio Life Ins. &c. Co. v. Reeder, 18 Ohio, 35; Osborn v. Noble, 46 Miss. 449; Homer v. Savings Bank, 7 Conn. 478; Roberts v. Colvin, 3 Gratt. 358; Daniel v. Joyner, 3 Ired. Eq. 513; Eastman v. Foster, 8 Metc. 19; Moses v. Murgatroyd, 1 Johns. Ch. 119; Constant v. Matteson, 22 Ill. 546; Cullum v. Br. Bank, 23 Ala. 797. On the general doctrine of subrogation, see Furnold v. Bank of Mo., 44 Mo. 336; Toulmin v. Hamilton, 7 Ala. 362; Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866; Troy v. Smith & Shields, 33 Ala. 469; Phillips v. Thompson, 2 Johns. Ch. 418; 1 Story’s Eq. Jur. §§ 499, et seq. and notes; Clark v. Ely, 2 Sandf. Ch. 166; Wright v. Morley, 11 Vesey, 12; Hodgson v. Shaw, 3 Myl. & K. 183; Wiggins v. Dow, 3 Sumn. 410; 2 Brick. Dig. 384, §§ 141 to 153; Leary v. Cheshire, 3 Jones’ [556] Eq. 170; McCune v. Belt, 45 Mo. 174; Aldrich v. Hapgood, 30 Verm. 617; Miller v. Sawyer, 3 Verm. 412. The first bill of exchange, to secure the payment of which the deed of trust in the present record was executed, matured in December, 1860. The renewed bill matured, and was dishonored, 24-27 December, 1861. On 31st January, 1863, more than a year afterwards, McMullen sold and conveyed the mortgaged lands to Wortham, and received the purchase-money from him. There is no proof that Wortham, when he purchased and paid, had received actual notice of the trust deed, or of Neal’s rights thereunder. The bill of exchange was never in fact paid. On the 24th January, 1863, Bradley, Hammond, and Carmichael, styling themselves beneficiaries under said trust deed, gave directions to Humphreys, the trustee, “ to enter satisfaction on the record of said deed, which is recorded in the office of the judge of probate of Madison county.” Humphreys entered satisfaction on the record, May 11, 1863, pursuant to said order. The record is silent, whether the direction to enter satisfaction was attached to, or spread on the record, before Humphreys actually entered the satisfaction — May 11th, 1863. The circumstances tend to show, that it was not. But we consider that immaterial. The registration was constructive notice of the existence of the deed, to all persons trading for the land; and it was equally constructive notice of Neal’s interest thereunder. If Wortham saw, or had knowledge of the direction given by Bradley, Hammond, and Carmichael, to enter satisfaction, he was equally notified that Neal did not unite in such direction. This was enough to put him on inquiry, as to Neal’s interests. These could not be certified away, by Bradley, Hammond, and Carmichael. We need not, and do not, decide whether a mere direction to enter satisfaction, even by all the beneficiaries, without such actual entry, would be enough. Possibly, such direction would be treated as a mere power, subject to revocation, until acted on and executed. — See Code of Ala., §§ 2222-3. Nor do we decide whether or not an unauthorized entry of satisfaction by the trustee, Humphreys, would have authorized Wortham to purchase afterwards, and thus place himself on the high vantage-ground of a bona fide purchaser without notice. That question is not before us, as Wortham purchased long before Humphreys made the entry of satisfaction.—See Thrall v. Spencer, 16 Conn. 139; Jones v. Quinnipiack Bank, 29 Conn. 25; Himes v. Keller, 3 W. & Serg. 401; Houston v. Br. Bank at Huntsville, 25 Ala. 250. W are unable to regard Mr. Wortham as a bona fide pur [557] cbaser without notice; and tbe result is tbe decree of tbe chancellor is affirmed. Brickebl, C. J., not sitting, having been of counsel.