Tew v. Henderson

HEAD, J. Statutory ejectment brought by Henderson, originally, against S. P. Lee and J. B. Collier. Afterwards, Tew was made a defendant by amendment. On separate motions of Lee and Tew, M. A. Collier was made a defendant as their landlord. The defendant, J. B. Collier, disclaimed as to all the land sued for, and judgment was rendered against him without costs. Lee and Tew had possession of separate portions of the land, and each disclaimed as to the portion possessed by the other, and pleaded not guilty as to the portion possessed by himself. M. A. Collier, the landlord, declined to defend as to the land in the possession of -Tew. Judgments were rendered against Lee and Tew, respectively, for the lands, respectively, disclaimed by them, without costs. It does not appear, in terms, what plea was interposed by M. A. Collier, but as there was a verdict against her for the lands, we take it that she pleaded not guilty as to all the land not in Tew’s possession, as to which the record shows she declined to defend. The objection raised by Tew that proceess was not issued and served upon M. A. Collier, his landlord, if it was a matter that concerned him, was of no avail, for the reason that she appeared and defended by counsel. There was nothing improper in making Tew a party by amendment (Code of 1886, § 2833) ; but he raised the question whether he could be brought in and a.recovery [550] had against him for a distinct portion of the land sued for, he having no connection with the rest, and the part in his possession being, as he proved, a separate and distinct tract from that occupied by Lee. We judicially know, however, if it be material, that the lands are, practically in one body. Under the • authority of Rowland v. Ladiga, 21 Ala. 9, the objection was not well taken. The practice seems to be recognized and enforced by section 2710 of the Code of 1886. See also Morris v. Beebe, 54 Ala. 300; Shumake v. Nelms, 25 Ala. 126. The plaintiff made title by introducing a mortgage, in due form, executed by the defendants, M. A. Collier and J. B. Collier, on September 22, 1893, conveying, with the exception of a particular 40 acres, which will be again referred to, the lands sued for and recovered by the plaintiff, to W. D. and Chas. Henderson, containing the statutory and an express warranty of title. In this mortgage, the name of one A. A. Collier, otherwise’ shown to be a female, appeared as a co-mortgagor, and her name was affixed to the instrument, but there was no such acknowledgment by her, as rendered it self-proving, and no attesting witness. If it was, in fact, executed by her it was, as to her, only an agreement to make a mortgage, enforceable only in equity. But, as will be seen, her connection with the instrument is of no importance in this case. This mortgage was regularly foreclosed, in strict conformity to the power of sale it contained, as appears from the recitals of the foreclosure deed which are prima facie correct, and the land sold and conveyed by the mortgagees, by a regular foreclosure deed, to the plaintiff. The omission of the word “they” in the certificate of acknowledgment to this deed, is immaterial. It is self-correcting. We remark, in passing, that it is not material, in this action, whether the power of sale was conformed to or not, in the foreclosure,’ since the mortgagees’ deed to the plaintiff passed the legal title without regard to that question. — Robinson v. Cahalan, 91 Ala. 479. The defendant, M. A. Collier, (and her tenants, Lee ■and Tew, under her), undertook to defend and maintain-an independent possession, in her own right, wholly unconnected with'a title or right of possession of A. A. Collier, or any one else, bv showing a mortgage executed by herself and J. B., Collier to Lehman, Durr & Co. [551] in February, 1892, and a regular foreclosure deed thereunder to A. A. Collier. Upon principles too plain for discussion such a defense can not be allowed. M. A. Collier is estopped by her own deed to set up against it an outstanding title created under such circumstances. Her tenants'are likewise estopped. We will not consume time in citing authorities on this proposition. The rulings of the court in reference to A. A. Collier^s title, to which exceptions were reserved, were wholly immaterial. There was no error in any of the rulings upon instructions to the jury, except upon a sinple point. The plaintiff sued for and recovered against M. A. Collier, with the other lands, the S. W. i of S. E. £ of Section 20, Township 9, Range 23. M. A. Collier defended as to all the land sued for, except that defended by Tew, which latter did not include this forty acres. Plaintiff’s muniments did not include this forty, hence he was not entitled to recover it. The instruction which authorized its recovery was erroneous and must work a reversal. Reversed and remanded.