Falkner v. Campbell Printing Press & Manufacturing Co.

SOMEBYILLE, J. — The contest in the present case is between the mortgagor and mortgagee, for certain rents of the mortgaged property, which had been paid into the hands of the register by order of the Chancery Court. These rents accrued after the filing of the cross-hill by the mortgagees, Moses Brothers, in reference to the priority of whose mortgage there is no dispute as between them, and as against the other unsatisfied mortgages. The special prayer of the cross-bill was for a condemnation of these rents, then in the hands of one of the defendants, Chambers, who had entered upon the premises, and collected the rents, under a claim of right in himself. The claim of Chambers was based on a mortgage executed by the appellant, Falkner, the validity of which had been successfully contested, and which had been declared void on appeal to this court, in the case of Chambers v. Falkner, 65 Ala. 448. This collection being without authority, and Chambers being one of the defendants in the suit, the chancellor made an order for him to pay the money into court, which was accordingly done. It was finally decreed, that a portion of fund should be appropriated to the payment of the costs of suit, and that the balance be paid to Moses Brothers, on their mortgage debt. This action of the court is assigned for error. The principle is too well settled in this State, either for controversy or discussion, that the mortgagor is the owner of the mortgaged premises, as against all the world except the mortgagee. He is therefore entitled to the rents, incomes and profits of the mortgaged property, so long as the mortgagee fails to disturb his possession or right by the interposition of a legal claim to them. This claim may be made, as is well settled, by filing a bill for foreclosure, accompanied with the ap-' pointment of a receiver, by taking possession, or by otherwise giving notice in the nature of a demand. — Johnston & Stewart v. Riddle, 70 Ala. 219; Scott v. Ware, 65 Ala. 174. It may be admitted, as stated in Scott v. Ware, supra, that the mere [364] filing of a bill of foreclosure will not alone interrupt the right of the mortgagor to take the rents. The mortgagee must be active in the assertion of his claim, either through his own exertions, or the intervention of the court in his behalf. — Gilman v. Telegraph Co., 91 U. S. 603. The mortgagor Falkner’s possession had been here disturbed, by the entry on the premises of one of the defendants, Chambers. This entry was made under power conferred in a mortgage, the validity of which the mortgagor did not at the time dispute, and which he does not assail in this suit. It may be that Chambers was a trespasser, by reason of his mortgage being void; but he was not acting for Falkner, and, therefore, cannot be deemed in law to be his agent. His possession of the disputed fund can not then be said to be that of Falkner. He must rather be considered as holding for the party entitled. The payment of this fund into court was ordered at the instance of the mortgagees, and on their motion. The demand for it by the register was, in effect, the demand of the mortgagees. Their application in this behalf, made to the court pursuant to the prayer of their cross-bill, may be considered as tantamount to a demand through the aid of judicial intervention. — Thomas v. Brigstocke, 4 Russell, 64 (4 Eng. Ch. 64). This demand was made before the funds reached the mortgagor’s hands, and while the whole matter of litigation was in gremio legis. The mortgage lien of Moses Brothers thus attached before any right to the rents legally became vested in the appellant. In this view of the case, we can see no error in the action of the chancellor touching the fund in question. The taxation of costs was a matter of discretion, and they could be properly taxed and made payable out of any moneys in the custody of the court, which belonged to any of the parties litigant, and subject to the lien of the mortgages sought to be foreclosed. Affirmed.