Collins v. Doe ex dem. Robinson

STONE, J. —It is contended for appellant, that the claim of appellee is only that of mortgagee, and that a recovery in ejectment cannot be had on such title, after the payment of the debt to secure which the mortgage was given. As bearing on this legal proposition, we cite the following authorities: 2 Greenlf. Ev. § 330; Burton v. Austin, 4 Ver. 105; Paxon’s Lessee v. Paul, 3 Harris & McH. 399; Peltz v. Clarke, 5 Peters, 491. We deem it unnecessary to decide the legal question stated above, for the following reasons: ]. The claim of appellee is not that of simple mortgagee. True, he conveyed the lands in controversy to Smith & Eddins, and took from them a cotemporaneous mortgage of the premises. The mortgage, however, contained a power of sale; and under that power, Mr. Robinson subsequently sold the lots to J. W. T. Reid, and gave him a bond to make title when called on. There is no evidence that any conveyance was ever made to Reid, or that title ever afterwards passed out of Robinson by any conveyance. All the subsequent claimants held [96] by successive transfers under Reid’s ownership, thus acquired at mortgage sale. The appellant, then, does not claim title directly from the mortgagor, but from the sale subsequently made to Reid. It thus becomes unnecessary to inquire into the legal relation subsisting between Robinson and Smith & Eddins. As to these lots, that relation was determined by the sale which Robinson made as mortgagee. Collins .claims under Reid’s purchase, and his rights must depend on Reid’s relation to Robinson, acquired by his purchase at the mortgage sale. He received but an obligation to make title; and under that obligation, he cannot defend against the paramount right of Robinson, his vendor. 2. There is no evidence that the mortgage debt from Smith & Eddins has ever been paid. It is probably true that Robinson sold the premises under the po.wer contained in his mortgage, and that if the terms of that sale have been complied with, Reid, or whoever owns his rights under his purchase, can, in equity, compel a conveyance.—Walker’s American Law, 320. Reid, however, and those claiming under him, stand in the relation of purchaser by executory contract to Robinson, the vendor to Reid. [2.] Hnder the above state of case, leaving out of view for the present the statute of limitations, neither Reid, nor any one holding in his right, can defend against the title of Robinson; and at law it does not vary the case, if Reid has paid to Robinson the entire purchase-money. Chapman v. Glassell, 18 Ala. 50; Huddle v. Worthington, 1 Ohio, 195. [3.] The propositions stated above are conclusive to show, that whether Reid had paid Robinson or not, was immaterial in this action. There was no error in rejecting evidence of payment by Reid. Neither was there any error in rejecting oral evidence of the sale by Robinson, and purchase by Reid. That fact was proved by the bond; and no evidence of sale, short of a conveyance of the title by Robinson, could defeat the appellee’s superior title.—Hilliard on Vendors, vol. 1, pp. 2, 3; Walker’s American. Law, 319, note. [97] [4.] Nor was there any error in rejecting evidence of the sheriff’s sale tinder executions against Eeid, and his deed to the purchaser. Heid had no title which was subject to levy and sale under execution.—Elmore v. Harris, 13 Ala. 360; Causey v. Driver, 13 Ala. 818. [5.] There is not enough in the record to enable us to affirm the validity of the sale and conveyance by the city tax-collector.—Blackwell on Tax Titles, 430. [6.] This leaves but the question arising on the statutes of limitation; and we feel constrained to declare, that there was no statute of limitations applicable to this case, of force wffien the action was brought, 9th January, 1854. The act of 1843, (Pamph. Acts, 17 ; Clay’s Digest, p. 329, § 93,) is the only statute relied on by appellant. Section 10 of the Code repealed “all acts of a public nature, designed to operate on all the people of the State,” not embraced in the Code. The act of 1843 was an act of a public nature, and is not embraced in the Code. The only section of the Code which, in its provisions, resembles the act of 1843, is section 2476, subdivision.2. That section, construed in connection with article 2 of that chapter, pp. 457-8-9 of the Code, is essentially different from the provisions of the act of 1843 ; and hence we hold, that the former statute ceased to have any operation, when the Code went into effect, January 17, 1853. Nor do the limitations provided by the Code apply to this case. This action was brought within a year after the Code went into operation, and is expressly covered by the exception in section 2502 of the Code. The act of Eeb. 15th, 1854, (Pamph. Acts, 71,) was passed after this action was commenced, and cannot affect the plaintiff’s right to recover. There is no error in the record, available to the appellant ; and the judgment of the circuit court is affirmed.