New England Mortgage Security Co. v. Clayton

COLEMAN, J. In May, 1882, Jasper N. Hendricks and wife executed a mortgage to John S. Paden upon eighty acres of land. The evidence shows that it was not then occupied as a homestead. In April, 1887, the same parties executed a mortgage upon the same land to plaintiff, appellant. Paden transferred by endorsement the mortgage and note executed to him to one J. H. Hendricks not using “apt words” to convey the legal title to land. — Sanders v. Cassady, 86 Ala. 246. The transferree, J. H. Hendricks, foreclosed the mortgage by power of sale contained in the mortgage, and became the purchaser himself. He did not execute a deed to himself. The purchaser then sold and conveyed the land to Charles A. Clayton, who went into immediate possession and has remained in possession. In February, 1894, the plaintiff foreclosed its mortgage by power -of sale, and became the purchaser. The plaintiff instituted the statutory action of ejectment against Clayton to recover the land. The case was tried by the court without a jury and rendered judgment for the defendant. A mere statement of the facts is sufficient to justify the judgment of the court. Both parties claim title from a common source, Jasper N. Hehdricks, the mortgage executed to Paden under which defendant holds being the older. Not only was the Paden mortgage the older, but the mortgage day transpired before the execution of the plaintiff’s mortgage, and there was no legal title in the mortgagor at the time of the execution of the second mortgage. Again, the rule of law which will not permit a defendant in ejectment to set up an outstanding superior legal title when both parties claim from a common source, has no application. There was no attempt to show an outstanding title superior to the title of Jasper N. Hendricks, the common source of both titles. The purpose of the introduction of the mortgage was to show that whatever title Jasper N. Hendricks owned had passed from him, before the execution of the second mortgage, and did not vest in the plaintiff. Conceding that there 364 were no apt words to convey the legal title to land by the transfer from Paden to J. H. Hendricks, the evidence shows that J. H. Hendricks went into possession of the land, under and by virtue of the transfer of the mortgage to him, and being in possession he executed a deed of conveyance to Charles Clayton, who took possession under his purchase. He certainly had a perfect equity to the land derived from the first mortgage. Being in possession, with a perfect equity, the rule did not prohibit him from introducing in evidence the first mortgage. We must not be understood as holding that the transfer by Paden of the mortgage was not sufficient to pass the legal title to his transferree. Section 983 of the Code of 1896 reads as follows: “A seal is not necessary to convey the legal title to land to enable the grantee to sue at law.' Any instrument in writing signed by the grantor, or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument.” Construing this section, see the cases of Wisdom v. Reeves, 110 Ala. 418; Ward v. Ward, 108 Ala. 278. Section 1040 reads as follows: “Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person, who, by assignment or otherwise, becomes entitled to the money thus secured.” See the cases cited under this section. The view we take of the law and the evidence renders it unnecessary to consider any other question.