Thurman v. Stoddard & Co.

Supreme Court of Alabama

Thurman v. Stoddard & Co.

63 Ala. 336

CourtSupreme Court of Alabama

DecidedDecember 15, 1879

StatusPublished

Cited by4 cases

This text of 63 Ala. 336 (Thurman v. Stoddard & Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thurman v. Stoddard & Co., 63 Ala. 336 (Ala. 1879).

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Opinion

BBICKELL, C. J.

Errors are assigned only by the appellant William D. Thurman; and of consequence, it is only necessary to consider the correctness of the decree so far as it may affect him. The question does not seem to us, as is argued by his counsel, whether he has estopped himself from asserting the equitable lien, which, as a vendor, he may have on parts of the mortgaged premises, by his attestation of the mortgage, without disclosing it; but rather, whether the [338]*338mortgagee is not a bona fide purchaser without notice, having the legal estate, against which the equitable lien can not prevail. The mortgage was given as security for a pre-existing debt; and if the time of payment of the debt had not been extended, nor any other new consideration had intervened, the mortgagee would stand simply in the place of the mortgagor, having no other right or equity. But, in consideration of the mortgage, forbearing the payment of his debt, extending the day of payment, he changes his condition and relation, and is entitled to protection as a bona 'fide purchaser. There is no pretense that he had any notice of the equity of Thurman as a vendor, and it can not be asserted against him. — 1 Jones on Mortgages, § 459.

The decree is affirmed.

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BBICKELL, C. J.

Errors are assigned only by the appellant William D. Thurman; and of consequence, it is only necessary to consider the correctness of the decree so far as it may affect him. The question does not seem to us, as is argued by his counsel, whether he has estopped himself from asserting the equitable lien, which, as a vendor, he may have on parts of the mortgaged premises, by his attestation of the mortgage, without disclosing it; but rather, whether the [338]*338mortgagee is not a bona fide purchaser without notice, having the legal estate, against which the equitable lien can not prevail. The mortgage was given as security for a pre-existing debt; and if the time of payment of the debt had not been extended, nor any other new consideration had intervened, the mortgagee would stand simply in the place of the mortgagor, having no other right or equity. But, in consideration of the mortgage, forbearing the payment of his debt, extending the day of payment, he changes his condition and relation, and is entitled to protection as a bona 'fide purchaser. There is no pretense that he had any notice of the equity of Thurman as a vendor, and it can not be asserted against him. — 1 Jones on Mortgages, § 459.

The decree is affirmed.

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Bluebook (online)

63 Ala. 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thurman-v-stoddard-co-ala-1879.

Opinion

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