Carlisle v. Wilkins's Administrators

B. F. SAFFOLD, J. The appellees, as the administrators of John L. Wilkins, sought to enforce a mortgage of land, which the appellant, Carlisle, executed, on the 4th of June, 1866, to George F. Taylor, as a security for the payment of a promissory note payable to Trammell, executor of the said John L. Wilkins, and made by Carlisle, with Taylor as his surety. The note and mortgage were assets of the estate of Wilkins, Taylor having assigned the mortgage to Turner, administrator of Wilkins, and came to the complainants as his representatives by proper transfers and assignments. The mortgage was acknowledged on the 29th of June, 1866, and was filed for record on the same day. The note was made on the 2d of May, 1860. A portion of the lands so mortgaged were purchased, in October, 1866, by George S. Turner and John Huguely, at a sale under execution issued June 19, 1866, preceded by executions issued December 7, 1865, and May 8, 1861, on a judgment against Carlisle, in favor of Devlin, Hudson & Co., rendered on the 26th of April, 1861. Taylor assigned the mortgage to Geo. S. Turner, administrator with the will annexed of Wilkins, on the 8th of February, 1868, and became bankrupt on the 13th of February, 1868. He never paid anything on the note. Carlisle was adjudged a bankrupt in December, 1867; and on his assignee’s sale of his effects; he purchased the land conveyed by the mortgage. The rights of all the other defendants are dependent upon the facts above stated. The assignment of the mortgage which Taylor made to Turner was not in words conveying the prop [376] erty, but was as follows: “ I hereby transfer the witbin mortgage, together with all the rights, powers, privileges therein granted to me, to George S. Turner, administrator with the will annexed of John L. Willdns, deceased, with power to sell in my name, or in his own, as transferee.” The consideration of this transfer was Taylor’s release from further liability as Carlisle’s surety on the note. 1. There can be no doubt that the complainants are entitled to the benefit of Taylor’s mortgage, both on the ground of the general doctrine, that any security taken by a surety from his principal enures to the creditor, and because of the consideration passing to Taylor. Although his assignment to Turner does not contain legal terms of conveyance of the property itself, and is neither witnessed nor acknowledged as a deed is required to be, yet it is in such condition as would justify a court of equity in reforming it into a proper assignment, between them, or treating it as such. Thompson v. Marshall, 36 Ala. 504; 1 Story’s Eq. Jur. § 115; M. & C. P. R. R. Co. v. Talman & Ralston, 15 Ala. 472. A mortgage of land partakes of the twofold nature of real and personal property. 2. The discharge in bankruptcy of Carlisle and Taylor does not destroy the right of the complainants to the security of the mortgage, given to them by the general law. The bankrupt law preserves such a lien, and does not so much contemplate the destruction of the debt as a restraint of the remedy. 3. The question is broadly presented, whether a sale under an execution, issued on a judgment recovered in a court of the State during the late rebellion, defeats a mortgage made and recorded before the sale, but during the time the execution was in the hands of the sheriff. In Martin v. Hewitt (44 Ala. 418), and Barclay v. Blocker, at the last term, it was held that it would not, and that such judgments would not support executions. This has been the general tenor of the decisions of this court since Martin v. Hewitt. In Foster v. Moody, at January term, 1873, a sheriff’s deed, based on a sale under execution issued in August, 1866, on a judgment rendered in the circuit court of Alabama in September, 1862, was held to be a superior title to a sheriff’s deed, based on a subsequent sale-under a junior judgment. The ground of this decision was, that the provisional government, existing in the State between July, 1865, and July, 1868, allowed the enforcement by execution of the Confederate judgments; and as this was a case of completed execution, it ought not to be disturbed. The judgments rendered in the state courts during the Confederate domination have never been regarded otherwise than as valid, though not possessed of all the properties of domestic judgments. In Bush v. Glover, 47 Ala. 167, the issue and [377] service of a summons and complaint in February, 1861, were deemed sufficient to support a judgment by default, rendered in September, 1866. The decisions of tbis court, referred to above, have been a rule of property until the subject of them has wellnigh passed away. Whatever may be the differences of opinion in respect to the properties which should be ascribed to these peculiar judgments, it will do no good now to treat the matter as an open question. Settlements have been made and property acquired on the faith of the construction heretofore given to them, which it would be wrong to disturb. The purchasers at the sheriff’s sale were apprised of the mortgage at the time of their purchase. The mortgagee probably did not know of the' execution in the hands of the sheriff. We decide that the lien of the mortgage must prevail over the lien of the execution. The terms of the chancery court for Lee county are required to be held on Thursday after the first Monday after the fourth Monday in May, and on the first Monday in November, and may continue at each term until the business of the court is disposed of. It does not appear that any term of the court was held at an improper time. The entry nuno pro tuno of the submission of the cause and the note of evidence inflicts no injury on the appellant, whether made improperly or not. It does very well, standing of the term at which it was made. All of the evidence found in the transcript has received consideration. The decree is affirmed ; with an amendment, requiring the sale first of that portion of the land not sold under the execution.