Amos v. Givens

de GRAFEENRIED, J. This was an action of ejectment, and the plaintiff (appellant here) and the defendants (appellees here) claim title through Peter Gray. On the 19th day of December, 1905, Peter Gray and wife executed a mortgage on the lands sued for to Joseph Givens & Co. to secure an indebtedness described in the mortgage. On January 6, 1906, Joseph Givens & Co. became indebted to S. W. Elliott, and to secure that indebtedness executed to Elliott their note and a written instrument, whereby they transferred and assigned unto Elliott, as collateral security, three mortgages which were attached as Exhibits A, B, and C to said written instrument of transfer. One of these mortgages so transferred and assigned as collateral security was the above-described mortgage, and that mortgage was Exhibit C to said written instrument of transfer. On the 27th day of January, 1906, Elliott filed for record in the probate office of the county in Avhich the [609] lands in question are situated the said written instrument of transfer, of which said Exhibits A, B, and 0 formed a part, and said instrument, along with the said Exhibits A, B, and C was duly recorded. ' Exhibit C. was not indexed as a mortgage from Gray to Joseph Givens & Go. The index of the entire matter simply showed the recording of an instrument from Joseph Givens & Co. to S. W. Elliott, but the mortgage from Gray to Joseph Givens & Co. was recorded as said Exhibit C. The privilege taxes for filing the mortgages A, B, and C were, under our statutes, $2.40, but the probate judge, according to the indorsement on the papers, collected only $1.80, which was the exact amount of the privilege tax that under our statutes was collectible for filing an instrument for record, securing an amount equal to the indebtedness from Joseph Givens & Co. to S. W. Elliott, and which the said collaterals were given to secure. It is conceded by the defendants that, if the filing and recording of the above mortgage under the above circumstances ivas a recording of the mortgage under our registration statutes, then the plaintiff was entitled to recover. If not, then the defendants claim that they were entitled to recover. At the time the mortgage was filed for record, Elliott was, by a proper and legally executed instrument, the owner of such an interest in the mortgage as authorized him to have it recorded. While the mortgage was filed as a part of a certain instrument of transfer, nevertheless that mortgage was on the 26th day of January, 1906, filed in the probate office for a specific purpose, viz., for the purpose of having it spread upon the records. It was, of course, the duty of the judge of probate, when he received that mortgage for record, to collect that tax which the law required him to collect [610] from the party filing it, for tlie privilege and. the protection which the law, through its registration statutes, afforded him, but the fact that the probate judge, through mistake or otherwise, did not make the proper collection, did not invalidate the filing of the mortgage or the receiving of it. The probate judge received the mortgage for record and duly recorded it, and he was, of course, liable for the tax which he failed to collect. The privilege tax which is required by the law to be paid upon the filing of a mortgage for record is a provision for raising revenue, and a mortgage which is filed for record and actually recorded operates as notice under our registration statutes although the judge of probate may fail to collect the fees which the law requires him to collect upon the filing of the same for record. — Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 391, 48 South. 510, 132 Am. St. Rep 20. The fact that the mortgage was not properly indexed, or was not indexed at all, in no Avay affected the constructive notice Avhich its filing for record gave of its existence under our registration statutes. — Chapman & Co. v. Johnson, 142 Ala. 633, 38 South. 797, 4 Ann. Cas. 559; Eufaula National Bank v. Pruett, et al., 128 Ala. 470, 30 South. 731; Carter v. Tennessee Coal & Iron Co., 180 Ala. 61 South. 65. The trial judge, under the evidence in this case, properly gave to the jury, at the written request of the defendants, .the affirmative charge in their behalf. There is no error in the record, and the judgment of the court beloAV is affirmed. Affirmed. Doavdell, C. J., and Anderson and Mayfield, JJ., concur.