Robinson v. Cahalan

STONE, C. J. There was no error in admitting the patent to Hayes in evidence, without proof of its execution.—Code, § 2781; Hines v. Greenlee, 3 Ala. 73; Bates v. Herron, 35 Ala. 117. Neither was there error in receiving the mortgage in evidence, without proof of its execution. It was duly acknowledged, certified and recorded within the statutory limit, and thereby became self-proving. — Code, § 1798, and note. It is thus shown that the Savings Bank proved a title in itself, which, if not devested, would maintain ejectment. 3 Brick. Dig. 324, § 19. The indorsement of the mortgage to Mrs. Morrow, containing no words of grant, did not devest the legal title out of the Savings Bank.—Sanders v. Cassady, 86 Ala. 246. We have thus shown that, unless the paper purporting to be a deed from the Jefferson County Savings Bank to Oahalan conveyed the legal title, plaintiff .has shown no right to recover in an action at law. The mortgage from Hayes to the Savings Bank contains a power of sale on thirty days published notice, if the mortgagor made default in paying the debt secured. The mortgage bears date in February, 1886. The instrument, which it is claimed conveys title to Oahalan, is dated in January, 1889, near two years after the indorsement of the mortgage to Mrs. Morrow. It is in form a quit-claim deed, purporting to convey the lands in controversy. It recites the making of the mortgage, its transfer to Mrs. Morrow, and states I hat “said lands were sold under and by virtue of said mortgage, on the twenty-second day of October, A. D. 1888, and purchased by J. J. Cabalan.” It names the Jefferson County Savings Bank as the grantor, and Cahalan as the grantee. Its concluding clause is : “In witness whereof, the said Jefferson County Savings Bank has caused its corporate seal to be hereto affixed, and its name to be hereto subscribed by its president, who has been thereunto duly authorized and' empowered. This 23d day of January, A. D. 1889.” Signed, “Jefferson County Savings Bank, Birmingham, Alabama, by Christian F. Enslen, President.” The seal, if one was attached, is not noticed in the transcript. The bill of exceptions contains all the evidence. The bill of exceptions fails to show that the sale was adver [482] tised, wbether it was a public or private sale, by* whom it was made, or the price at which the land was purchased. And the deed neither avers nor recites either of these things. The record is fatally defective in not showing enough to make the alleged sale a valid foreclosure of the mortgage.—Wood v. Lake, 62 Ala. 489. Possibly, this proof could have been supplied, but it is notin the record. We feel constrained to hold that, as a purchaser at foreclosure sale, Cahalan has failed to make out his case. Has he shown a right to recover as the owner of the mortgage title ? Up to the making of the alleged deed of January, 1889, the Jefferson County Savings Bank had a title as mortgagee, which would maintain ejectment against Hayes, the mortgagor. It .was also a sufficient title to recover from any one who was in by no better title than Hayes could convey. No testimony was offered as to the nature of Robinson’s claim, if he had any. The mortgage claim of the Savings Bank, being a legal title as against Hayes and those claiming under him, was vendible, and could be granted and conveyed by it, if proper words of conveyance were employed; and its grantee would thereby become clothed with all the legal rights the mortgage secured to the Savings Bank. The deed to Cahalan of January, 1889, if properly executed by and in the name of the Savings Bank, was and is otherwise sufficient to vest the mortgage title in Cahalan. Is it shown to be the proper deed of the Savings Bank ? As we have shown, the deed offered and received in evidence purports to have been signed by the president of the bank, with the corporate seal attached; and the conveyance affirms that the president had been “thereunto duly authorized and empowered.” This wasprima facie a conveyance of the title, and cast'on the defendant the burden of proving a want of authority in the president to convey.—Burrill v. Nahant Bank, 2 Metc. (Mass.) 163; s. c., 35 Amer. Dec. 395; 4 Amer. & Eng. Encyc. of Law, 238, n. 4. The Circuit Court did not err in receiving the deed in evidence, nor in the charge given to the j ury. The plaintiff had shown a prima facie right to recover. Affirmed.