Watson v. Steele

SOMERVILLE, J. The title which the complainant acquired to the land in controversy, by the purchase made by him on the first of August, 1881, under the execution issued on his judgment against John D. Steele, was clearly paramount to all other liens and incumbrances on the land, except the Braune mortgage, which was paid by, and assigned to the defendant, Watson. The complainant’s execution lien was in full force and unimpaired, both in April, 1880, when the two judgments owned by defendant were rendered, and in November of the same year, when defendant purchased from John D. Steele the equity of redemption in the land. The mere delay on plaintiff’s part, in executing his judgment, did not affect his lien, as against the defendant in execution. There was no lapse of an entire term between the suing out of any two of the alias executions issued between May, 1878, and the date of the sheriff’s sale in August, 1881, nor was there any stay during this time by order of the plaintiff, or his attorney. Any intervening right, therefore, acquired by the defendant during this intermediate period, was subordinate to the preferred lien of the plaintiff’s execution. — Code, 1876, § 3211; Keel v. Larkin, 72 Ala. 493; Dryer v. Graham, 58 Ala. 623. It is important to keep this fact in mind, as a controlling fact in the whole case. The matter of chief objection to the chancellor’s decree, as urged by appellant’s counsel, is, that he has charged the defendant with rent and for use and occupation for the years 1881, 1882, 1883, as mortgagee in possession. This is said to be erroneous, for the reason that the defendant was the purchaser of the equity of redemption from John H. Steele, and [364] that he had satisfied the Braune mortgage, taking an assignment of it to himself only from abundant caution. It is plain that the defendant, by this purchase of the equity of redemption, acquired no better title than his vendor, the mortgagor, had. lie was simply placed in his vendor’s shoes; and as the title of the mortgagor was subject to the lien of plaintiff’s judgment, so was the title acquired by the defendant as purchaser. If the defendant had never made the purchase in question, the rent for the year 1881, not being due .'at the time of the sheriff’s sale in August of that year, would not have belonged to the mortgagor, who was defendant in execution, but would have passed to the plaintiff as purchaser at the execution sale, on the principle, that rent not due is regarded as an incident of the reversion, or part of the freehold. — Gayle v. Randall, 71 Ala. 469. So the mortgagor, after the sheriff’s sale, would have been liable to the complainant, for use and occupation, except as against the claim of the mortgagee. He was the owner of the land as against all the world, except the mortgagee. The defendant, therefore, could claim no title superior to.that of complainant, except as assignee of the Braune mortgage ; and such a claim would authorize him to be charged with the rents actually collected, or which-he could have collected by due diligence during the years 1881-1883, inclusive, or for use and occupation, if defendant was himself in possession of the land sought to be j’edeemed in the bill. — Dozier v. Mitchell, 65 Ala. 512; Sloan v. Frothingham, 72 Ala. 589; Butts v. Broughton, Ib. 294. The bill clearly had equity, as a bill for redemption. The mere payment of the mortgage debts of the defendant, after the law-day of the mortgage, did not re-invest the legal title of the land in the mortgagor, or divest it out of Braune, as mortgagee. — Slaughter v. Swift, 67 Ala. 494. The assignment of the debt and mortgage by Braune to the defendant conveyed the legal title to him, and this was a bar to an action of ejectment at law. The dismissal of the defendant’s cross-bill worked no possible prejudice to him. The complainant admitted the alleged misdescription in the land; and if' it had been corrected, according to the prayer of the cross-bill, this could not have affected the complainant’s right to redeem, which was adjudged by the court to exist. We find no error in the chancellor’s decree, and it is accordingly affirmed.