Buell v. Underwood

SOMERYILLE, J. — The sole question properly presented by the record, in this case, involves the construction of section 2198 of the Code (1876), which is as follows,: “ Where a power to sell lands is given to the grantee, in any mortgage, or other conveyance intended to secure the payment of money, the poioer is part of the security, and may be executed by any person, or the personal representative of any person, who, by assignment or otherwise, becomes entitled to the money thus secured. ” The instrument claimed to be assigned here, is a mortgage, in the usual form, conveying the land for the recovery of which this action was brought. As part and parcel of ir, bearing the same date, and attested by the same witnesses, [287] is a crop-lien note, given to secure tbe same debt, and obligating the maker to pay it at a date specified. The written transfer, on the back of this instrument, is of “ all tbe right, title and interest ” (of the mortgagees), “ in and to the within mortgage. ” Tbe court below excluded the evidence of this written indorsement, when offered by appellant, “ on tbe ground tbat it was insufficient to convey to tbe assignees tbe legal title to tbe lands conveyed by tbe mortgage. ” This was offered, also, in connection with the further evidence, that tbe traDsferrees of said mortgage bad proceeded, in accordance with a power of sale contained therein, to expose said land to sale at public outcry, and make a deed conveying it to tbe purchaser, who afterwards made a quit-claim of bis acquired title to tbe appellant. We think tbe Circuit Court erred in excluding this evidence. Tbe assignment entitled the assignee to the money secured by the mortgage, within the meaning of the statute. Tbe transfer is broad enough to carry both of said instruments, wbicb are, in legal effect, but one and tbe same, and includes tbe debt secured, which thereby passes to tbe assignee. The power of sale was properly exercised by tbe assignee, being « part of the security; and a deed made thereunder, strictly in accordance with its terms, would convey such title as passed under the mortgage to the grantee. — McGuire v. Van Pelt, 55 Ala. 344; Lewis et al. v. Wells, 50 Ala. 198; Graham & Rogers v. Newman, 21 Ala. 497. Be versed and remanded.