Wade v. Bank of Gaylesville

SOMERVILLE, J. As against all the world, except his mortgagee having the legal estate and his privies, the mortgagor is held to be the owner of the fee, and entitled to the possession and use of the mortgaged property; and one who acquires the mortgagor’s equity of redemption, whether before or after default in the payment of the senior mortgage debt, stands, for all purposes, in the shoes of the mortgagor, and may maintain ejectment to recover the possession against the mortgagor himself. Cotton v. Carlisle, 85 Ala. 175, 4 So. 670, 7 Am. St. Rep. 29; Carter v. Smith, 142 Ala. 414, 38 So. 184, 110 Am. St. Rep. 36. This necessarily implies that the mortgagor-defendant cannot, in such an action, set up the title outstanding in the senior mortgagee to defeat the plaintiff’s right. Carter v. Smith, supra; Graham v. Partee, 139 Ala. 310, 35 So. 1016, 101 Am. St. Rep. 32. And, where the mortgagor’s default gives to the junior mortgagee the right of possession, the latter may recover in ejectment on his mortgage title alone without foreclosure. Jackson v. Tribble, 156 Ala. 480 (14), 47 So. 310. In that case it is held, also, that a power of sale in a mortgage carries by implication the power to make a deed to the purchaser; and that a sale under the power cuts off the equity of redemption as effectually without as with the execution of a deed. Plaintiff was prima facie entitled to recover on the strength of his mortgage deed alone, without the aid of the certificate of foreclosure. Defendant’s theory, however, is that the quoted provision of his mortgage to the Federal Land Bank, to the terms and conditions of which plaintiff’s mortgage is declared to be subject, viz., that the mortgagor should take good care of the premises, commit no waste, cultivate it properly, and keep the buildings and premises in good condition, is of such force and effect as to entitle him, and even to require him, to keep possession of the land, even against his own contract with and grant to the plaintiff-mortgagee. This theory is plainly erroneous. The quoted provision of the senior mortgage is merely a covenant by the mortgagor; and, *542 while the covenant is binding on the mortgagor, . and his assigns and alienees who may succeed to the possession of the premises, it cannot protect the mortgagor against the effect of his own grant. Defendant’s mortgage conveyance to plaintiff estops him to deny its legal effect. Graham v. Partee, 139 Ala. 310, 314, 35 So. 1016, 101 Am. St. Rep. 32. Of course, the plaintiff is bound by the covenant in question whenever he takes possession of the premises in privity with his mortgagor. It must be noted, also, that the chancery decree introduced in evidence by defendant exhibits a res judicata between these parties as to the validity of plaintiff’s mortgage and the paramountcy of his title thereunder and his superior right to the possession of the mortgaged land. Cofer v. Schening, 98 Ala. 338, 13 So. 123. Defendant contends that his discharge in bankruptcy effected a discharge and release of plaintiff’s mortgage, since it was executed within four months before the filing of defendant’s petition in bankruptcy. Such a discharge avoids all liens obtained against the property of the bankrupt through legal proceedings (7 Corp., Jur. 195, | 290), but this rule dpes not apply to complete legal titles (7 Corp. Jur. 200, § 299), and the lien of a mortgage is not affected by such a discharge, although the discharge will prevent the rendition of any personal judgment for a deficiency on foreclosure. 7 Corp. Jur. 411, § 728. Moreover, such liens are avoided, if at all, “only as against the trustee in bankruptcy and those claiming under him, and not as against-all the world, or as against the bankrupt himself.” 7 Corp. Jur. 197, § 290; Rochester Lumber Co. v. Locke, 72 N. H. 22, 54 A. 705. But, even if there were a discharge of the mortgage by the bankrupt’s discharge, the chancery decree is conclusive of the whole matter in favor of this plaintiff as between him and this defendant. We can find no ground upon which the propriety of the general charge for plaintiff can be denied, and the judgment will be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.