Downing v. Blair

SOMERVILLE, J. The title of the plaintiff, Mrs. Blair, to the lands sued for would seem very clearly to be prima facie good, unless vitiated by some one of the several defenses set [219] up, which we will proceed to consider. Her chain of title is as follows : (1) A deed from Levi 0. Blair to the defendant, Downing, executed in 1873 ; (2) a mortgage by Downing and wife to one Francis, in 1875.; (3) a conveyance by Francis of his legal title, as mortgagee, to the plaintiff, in 1880. It is claimed, in the first place, that a superior title was acquired by Neely at the register’s sale, in February, 1878, and -was transferred by him to the defendant. When Blair sold to Downing, in 1873, conveying to him the legal title, the latter executed his promissory note for an unpaid balance of three hundred dollars, purchase-money due on the land. This was, without question, a lien on the land, superior to all other equities. The enforcement of it, however, by Neely, who became the transferee of it from Blair, did not affect the legal title then vested in Francis, for the plain reason, that Francis was not made a party to the bill for foreclosure of the lien. The legal title was not before the court, and could not be divested. Judgments and decrees of courts affect only the rights of parties and privies, and not of strangers. When the chancery suit was commenced, Francis was the holder of the legal title by conveyance from Downing. The superior equity merely can not be tested in an action of ejectment, which concerns only rights strictly legal. The evidence offered by the defendant, seeking to assail the truth of the facts stated in the certificate of acknowledgment, appended by the justice of the peace to the mortgage of Francis, executed by Downing and wife on December 1st, 1875, was properly excluded. The rule is settled by our decisions, and generally by the weight of authority, that where a mortgage, or other conveyance, is duly acknowledged before a proper officer, and the requisite certificate of acknowledgment is affixed in the form prescribed by statute, this circumstance constitutes such cogent proof of a free agency and absence of restraint, as to be perfectly conclusive, unless rebutted by clear proof of fraud or imposition practiced on the grantor, in -which the officer or. the mortgagee participated.—Miller v. Marx, 55 Ala. 322 ; Moog v. Strang, 69 Ala. 98 ; Johnston v. Wallace,. 24 Am. Rep. 699. There was no effort to assail the instrument on the ground of fraud, or imposition, but only to contradict the truth of the facts recited in the certificate of the justice on the theory of mere negligence or mistake, which was not permissible. The law is, furthermore, settled in this State, that, after the law-day of a mortgage, and after default in payment of the mortgage debt, the estate at law — the legal title of the mortgaged property — vests in the mortgagee, and this title he can convey to another by apt words in a deed of conveyance,. [220] although the mortgage debt itself is not assigned.—Welsh v. Phillips, 54 Ala. 309. There are some authorities which make a distinction between conveyances made by mortgagees in possession, and out of possession ; but this distinction finds no room for recognition under the theory of mortgages now so fully settled in this State. There would seem to be no great difficulty in holding that a legal title, which, on the death of the holder, descends to his heirs, may be conveyed by contract during the life of the party in whom it is vested. Erancis was undoubtedly a purchaser for valuable consideration. Although the mortgage, debt was a pre-existing one, the security was given upon the consideration of its extension, and this was sufficient to constitute the mortgagee a purchaser for value.—Mobile Life Ins. Co. v. Randall, 71 Ala. 220 ; Thames v. Rembert, 63 Ala. 561. The case of Pepper v. George, 51 Ala. 190, holding the contrary view, has been impliedly overruled by the above authorities, and we now declare it expressly ■overruled on this point. ¥e discover no error in the record, and the judgment is .affirmed.