Anniston Banking Co. v. Green

ANDEItSON, C. J. (1, 2) Regardless of the rules of law heretofore existing as to the effect that the satisfaction of a mortgage debt, by one who was legally bound to do so, had upon the rights of a subsequent mortgagee or other creditor of the mortgagor, the Code of 1907, '§§ 5384 to 5394, inclusive, fixes and defines the rights and liabilities of joint makers of notes, bonds, bills, or contracts for the payment of money, and which includes mortgages. — Thrasher v. Neely, 196 Ala. 576, 72 South. 115. Sec. tion 5384 defines the liability, and fixes the relationship. Section 5385 gives the surety the right to a transfer, and subrogates him to all the rights of the creditor when he pays the debt, “in effect, he shall be a purchaser of the debt and all its incidents.” Section 5389 provides that suretyship can be proved by parol if the fact does not appear upon the face of the contract. It also appears that section 5394 provides a subrogation both in law and equity, upon payment of the debt by the surety, whether there was an assignment or not, and gives him the rights of the original creditor, and that as against other creditors, his claim ranks in dignity the same as that of the creditor whose claim is paid. It would therefore seem from the foregoing that while Miller Green was a joint maker of the Edwards’ mortgage, the undisputed evidence shows that he was but a surety for his brother Joe to the extent of approximately $2,500 of the mortgage debt, and upon the payment of same he was under the statute entitled to the transfer that was made to him, or would have been subrogated for the mortgage under section 5394, whether there had been a transfer or not. (3) We do not think that the plaintiff is an innocent purchaser, as the mortgage, upon its face, was a joint one, and the registration of same was sufficient to put the plaintiff upon inquiry as to the nature and character of the debt. — Truss v. Miller, 116 Ala. 494, 22 South. 863. Not only was this so, but Well-born admitted actual notice of the mortgage, but claims that he was not informed that Miller Green was surety for his brother as to a part of the debt, and principal as to the other part. He nevertheless knew that there was a joint mortgage, and as to Edwards, the mortgagee, they were both liable, and the law subrogated Miller Green to the rights of Edwards for whatever sum he may have paid for his brother Joe, and section 5384 made him [570] a surety to the extent of the share of the other maker, and section 5394 put Miller Green in the shoes .of Edwards to the extent of so much of the debt due by Joe as was paid by Miller, and, prima facie, Joe was liable as principal to some extent, and not as a mere surety for Miller, and according to Wellborn’s version he was jointly liable for the whole debt, and not as a surety for Miller Green; therefore, when Miller paid the debt, he became subrogated to the rights of Edwards to the extent of so much of the debt as should have been paid by Joe Green. (4) It is true, the Edwards mortgage was made just before the adoption of the present Code but these new provisions of the statute existed when Miller Green paid the mortgage and got the assignment and the new statute applies unless to do so would impair some constitutional right by the impairment of a contract. —Cowley v. Shields, 180 Ala. 48, 60 South. 267. It is sufficient to say that the appellant did not take its mortgage until long after the adoption of the Code, and whether or not the new statute placed an additional burden upon or deprived Joe Green of any rights under the mortgage contract matters not, as he is not complaining. (5) The trial court did not commit reversible error, in declining to let the appellant ask Joe Green, a witness, to explain why Wellborn was taking such interest in his debts and was not taking any interest in him. This called for the mere reason, conclusion, or opinion of the witness. The judgment of the city court is affirmed. Affirmed. McClellan, Sayre, and Gardner, JJ., concur.