Johnson v. Beard

COLEMAN, J. — This was an action in ejectment by Beard . against appellant. Plaintiff in ejectment suit claimed title under a deed executed to him by the assignee of a mortgage, Who forelosed the mortgage under a power of sale contained in it. Appellant, defendant in the ejectment suit, was the mortgagor. The grounds of defense were, first, that the transfer of the mortgage to the assignee contained no apt words of conveyance so as to carry the legal title; and, second, that the transfer of the mortgage to the assignee was without consideration, and made to defraud the creditors of the mortgagee. Code, section 1844, which provides, that the assignee of a mortgage in which is given the grantee the power to sell, may execute the mortgage notwithstanding the assignment may not contain apt words to convey the legal title, has been so often construed by this court, we deem it unnecessary to do more than simply to cite some of the cases: Martinez v. Gay, 91 Ala. 334; 80 Ala. 263; Buell v. Underwood 65 Ala. 285; 55 Ala. 344. In the case of Sanders v. Cassady & Blackwell, 86 Ala. 246, the auctioneer who sold, the land at public auction, for the assignee of the mortgage, made the deed in his [97] own name to the purchaser. As a matter of course, not beiug the transferree of the mortgage, and having no title in himself otherwise, he could convey none. The cases are wholly unlike. Conveyances made with the intent to hinder, delay and defraud creditors, are valid and binding between the parties and their privies, and as to them have the same operation and effect as if founded on a valuable consideration, untainted with a covinous intent. — 3 Brick. Dig. p. 514, § 105. The defendant wras the mortgagor, a debtor instead of being a creditor of the mortgagee, and as such had no right to impeach the validity of the assignment made by his mortgagee, or to inquire into, the consideration passing between the mortgagee and his assignee. There was no error in excluding the testimony offered to prove these facts. Appellant’s objections to questions could not be sustained ' on other grounds. They are too general. Objections to testimony should define the grounds of objection. The court is not bound to cast about in search of them. — Dryer v. Lewisy 57 Ala. 551. The principles of law herein declared, dispose of the special pleas of the defendant. There is no error in the charges given, or in refusing to. charge as requested. Affirmed.