Stanley v. Johnson

COLEMAN, J. The appellee, Johnson, sued in ejectment to recover certain lands. With the exception of five acres in the possession of Nelson Kelley, one of the defendants, both parties deduce title from Robert Anderson as common source. In December, 1882, Robert Anderson sold and conveyed all the lands sued for by deed of conveyance, to Pike Martin, a married man. Contemporaneously with the purchase and deed of conveyance, Pike Martin executed to the vendor a mortgage to secure the payment of the purchase money. ‘ After the purchase of the land and execution of the deed of conveyance and mortgage, Martin moved upon the lands and held them, except the five acres, as a homes-stead. The wife of Martin did not join in the execution of the mortgage to secure the purchase money.' On the 26th of October, 1885, the purchaser, Martin, not having paid any part of the purchase money, executed a deed to all the land purchased back to Anderson with covenants of warranty, in payment and satisfaction of the purchase money debt and the mortgage to secure it. The mortgage was indorsed as follows ; 1 'October 26,1896, 348 This mortgage is satisfied by the purchase of the land described therein, ’ ’ and signed by the mortgagee. The wife joined in making the deed, but there was no separate acknowledgment by the wife such as is required by statute to convey a homestead. It is provided by statute, that the homestead claim shall not prevent a vendor’s lien, for unpaid purchase money 'from attaching (Code of 1886, § 2509) ; and we have decided that the lien for the purchase money is superior to the homestead claim. Vendor’s lien, as such, is cognizable only in a court of equity. The facts show that the mortgage for the purchase money was executed contemporaneously with the execution of the deed to the vendee, and at that time, the vendee had never been in possession. Under these circumstances no homestead interest could have vested prior to the execution of the mortgage.-Glass v. Tisdale, 106 Ala. 581; Adkins v. Bynum, 109 Ala. 281. The mortgage to secure the purchase money, embraced the entire interest purchased, and was valid without the signature of the wife. In a court of law, after the maturity ©f the mortgage, the mortgagee becomes the owner of the land, with the legal title, and could recover possession upon this title in a suit in ejectment. There remained only an equity in the vendee. The mortgagee made no conveyance of the legal title, and unless prevented by statute was entitled to recover at law upon his title as mortgagee. The statute provides that payment of a mortgage debt divests the title passing by the mortgage.-Code of 1886, §§ 1869, 1870. If the deed of the vendee conveying the lands back to his vendor in satisfaction of the purchase money debt, was void, as insisted upon by appellant, for want of a proper acknowledgment by the wife, the mortgage debt has not been paid,' and the title of the mortgagee has not been divested, and he was authorized to recover, on the uncon-troverted facts of the case. We make no decision of the question, as to whether a homestead estate can arise in favor of a vendee against a vendor’s lien, or where the legal title is reserved to secure the payment of the purchase money, so long as the purchase money remains unpaid. See Waples on Homestead & Exemption, pp. 352-54; Thompson on Homestead, §§ 330-34. What we decide is, that if the deed of Martin to his vendor, was a valid deed, the plaintiff could recover on that title, 349 On tlie other hand, if the deed was void, then the mortgage debt has not been paid, and the plaintiff could recover on the title conveyed by the mortgage. In either phase, the plaintiff was entitled to recover. The suit in ejectment was begun in September, 1894. The evidence shows that plaintiff'had rented the lands for the year 1894, to one Breedlove. The defendants’ contention is that plaintiff was not entitled to the possession on account of the renting to Breedlove, at the time of the institution of the suit, and therefore is not entitled to recover. It is undoubtedly true, that to authorize a recovery in ejectment, the plaintiff must show that he was entitled to the possession at the time of the institution of the suit, but neither- a mortgagor, nor a vendor, will be permitted as against his mortgagee or vendee to set up title in a stranger, witli which they are in no wise connected, to defeat the recovery.-Allen v. Kellam, 69 Ala. 442; Dunton v. Keel, 95 Ala. 159; Draper v. Walker, 98 Ala. 310. So far as being in privity with the title of plaintiff’s lessee, the evidence shows that the defendants’ possession was hostile to that of the lessee. Ho had recovered the land by suit in ejectment against the tenants of the plaintiff. The judgment was by default, and neither the tenant nor plaintiff in that suit gave the landlord, the plaintiff in the present action, notice of that action against his tenant, and he was not a party. The judgment by default against the tenant, cannot be made evidence for any purpose against the plaintiff in the present suit. Smith v. Gayle, 58 Ala. 600. What has been said on this point disposes of the contention of the defendant as to the five acres. We find no error in the record, and the judgment must be affirmed. Affirmed.