In this case petition for rehearing has been filed in which it is contended that the opinion herein is in conflict with the opinion and judgment of this Court in the case of Manufacturers' Trust Co. v. People's Holding Co., et al.,
The factual conditions which differentiate the two cases are that in the Manufacturers' Trust Co. case appellees, People's Holding Co., relied upon the record title, as will be seen from a perusal of that opinion wherein it is said:
"June 27, 1929, Bond Mortgage Corporation executed its note to Monticello Drug Company in the sum of $8,000 which it secured by a mortgage on the lands described in the warranty deed made to it by Peoples Holding Company. This deed was recorded July 1, 1929. On the same date as the last named mortgage and as part of the same transaction Peoples Bank of Jacksonville, as the first mortgagee, executed a satisfaction of its mortgage in which it among other things asserted that it was the then present owner and holder of the mortgage executed to it by Peoples Holding Company for $8,215.32; it acknowledged full payment *Page 355 and satisfaction of the same and the indebtedness, secured thereby, including the cancellation of the note as evidence of said indebtedness. At the time the Monticello Drug Company took the note and mortgage and advanced the $8,000 to Bond Mortgage Corporation, no assignment of the mortgage and note to People's Bank of Jacksonville dated March 1, 1929, appeared of record.
June 27, 1932, almost three years after its note was protested for nonpayment, Manufacturers' Trust Company filed its bill to foreclose the mortgage executed to it through mesne assignments by People's Bank of Jacksonville and on July 12, 1932, Monticello Drug Company filed a crossbill to foreclose the mortgage executed to it by Bond Mortgage Company; both complainant and cross-complainant contending that it held the superior mortgage."
In this case there was no satisfaction of the mortgage from Peter Forbs and wife to T. S. Green. If T. S. Green had executed a satisfaction of that mortgage and it had been recorded prior to the recording of his assignment of the mortgage to Leonard Forbs, then Chapter 6909, Acts of 1915, Section 3841 R. G. S., 5744 C. G. L., would have become applicable and the satisfaction of the mortgage being of record prior to the record of the assignment of the mortgage would have made the assignment of the mortgage non-effectual as against subsequent purchasers without notice. But, when the original mortgage was recorded and no satisfaction thereof entered upon the record, in the absence of other definite proof to the contrary, it must be assumed that the mortgage is still in full force and effect in the hands of some one and a subsequent purchaser or mortgagee has the right to require the production of the mortgage and note which it is given to secure, or a satisfaction on record. *Page 356
In this case the appellants contend that investigation was made in their behalf and they learned facts from which they assumed that the mortgage had been discharged. There is conflict of evidence in this regard. The strongest evidence in behalf of appellants was to the effect that Mr. Green told attorney for the appellants that Peter Forbs did not owehim anything, but that evidence does not say that Green stated that the mortgage had been paid off and satisfied.
It is also contended that Mr. Green promised Attorney for appellants that he would satisfy the mortgage of record. Mr. Green denies making any such promise.
The Chancellor considered the testimony and held that appellants were not bona fide purchasers without notice as to the rights of Leonard Forbs. It is not made clearly to appear that the Chancellor erred.
The petition for rehearing should be denied.
It is so ordered.
Rehearing denied.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur.
DAVIS, C. J., and ELLIS and TERRELL, J. J., concur in the opinion and judgment.
