Gamble v. Caldwell

McCLELLAN, J. It was of course competent for Gamble, tbe grantor in tbe mortgage tbrougb a sale under wbicb Caldwell, plaintiff below and appellee, bere, claims title to tbe land in question, to authorize and empower tbe auctioneer wbo should cry off tbe land in tbe execution of tbe power of sale wbicb it contained, to execute a conveyance to tbe purchaser at such sale ; tbe mortgage was a power of attorney to tbat end. It is equally clear that tbe authorization, embodied in tbe power of sale, to tbe mortgagee to become tbe purchaser at any sale thereunder, rendered tbe purchase by, and conveyance to Caldwell for tbe mortgagee, the Netherlands American Land Company, as efficacious in all respects to tbe investiture of title in such trustee as if be bad been a stranger to said company and bad purchased tbe land on bis personal account.—Knox v. Armistead, 87 Ala. 511. By this sale, purchase and conveyance tbe contract evidenced by tbe mortgage became fully executed in such sort tbat if tbe mortgage bad originally been invalid by reason of tbe failure of tbe mortgagee, a foreign corporation, to comply with our laws in respect of having and declaring a place of business in this State with an authorized agent or agents thereat, tbat infirmity could not have availed the defendant below; Farrior v. New England Mortgage Security Co., 88 Ala. 275; and if tbe trial court erred in admitting in evidence tbe declaration of a place of business and appointment of an agent purporting to have been executed by R. Yan Rees president pro tern of tbe land company and wbicb was certified by tbe Secretary of State as being on file in bis office, as required by tbe statute, at tbe time tbe mortgage was executed, tbe error involved no injury to tbe defendant, since tbe rights of tbe parties to this suit were at tbe time it was instituted and at tbe time of tbe trial, precisely tlie same whether tbe statutory and constitutional provisions obtaining in tbe premises bad been complied with or not. We may remark, however, tbat we do not conceive tbat any error was committed by tbe trial court in tbe admission of tbe certified copy of said declaration. [580] It appears to be signed by the officers and to set forth the facts required by the act of February 28, 1887. — Acts 1886-87, p. 102, its execution is properly probated and acknowledged. Code §§ 1800, 1801, and the seal of the corporation is shown to have been attached to the original. What we have said will serve to indicate the grounds of our opinion that the mortgage executed by Gamble and the deed executed by the auctioneer to Caldwell were properly admitted in evidence. The position taken by counsel that the sale and conveyance to Caldwell as trustee for the land company was inoperative and void because, as it is insisted, the sale was made and the deed executed by a third person, not in possession of the land, the theory being that the possession was held by the defendant adversely to such third person, is wholly untenable. The sale and conveyance were made in strict accordance with the terms of the mortgage, the “third person” referred to in argument was the auctioneer who was duly authorized by the mortgagor to make sale and conveyance of the land, and was not a third person at all but vhe attorney in fact of the grantor in the mortgage, fully empowered to do what was done for and in his behalf. The principle invoked manifestly has no sort of application to this case. There was no conflict in the evidence. It made out a case for a recovery on the part of the plaintiff, and the court properly gave the affirmative charge in his favor. Affirmed.