High v. Hoffman & Graves

DOWDELL, J. Tlie husband and wife jointly executed the contract and mortgage. The mortgage was upon the wife’s lands. There was evidence tending to show that the husband negotiated the loan for the wife, and that the money so obtained was used ancb applied in payment of purchase price of a piece of land which was conveyed by deed to the wife. Under this phase of the evidence charge No. 1 requested by. the defendants was clearly misleading. The jury were required by the charge to find for the defendants, if they believed from the-evidence that the loan was made to the. husband, which they, might have well believed, and at the same time being satisfied from the evidence that the loan wasc also to the wife, or in other words upon the credit of both. The fault of the charge consisted in failing to confine the question of the loan or debt exclusively, to the husband. We do not understand that it was intended in the case of Downing v. Blair, 75 Ala. 216, to assert, as contended by counsel for appellant, that a mortgage may not convey the legal title vested in him by tlie mortgage, until after the law day of the mortgage and default made. The authority cited in that case of Welsh v. Phillips, 54 Ala. 309, lays down a contrary doctrine. It was said in Downing v. Blair, “that, after the law day of a mortgage, and after default in payment of the mortgage debt, the estate at law — the legal title of the mortgaged property — vests in the mortgagee, and this title he can convey by apt words in a deed of conveyance, although the mortgage debt itself is hot assigned.” This is unquestionably correct and true, but it is not to' be concluded from this, that the learned judge who rendered the opinion intended to lay down the rule, that a mortgagee may not by deed convey the legal title until after the law flay. As was said in Welsh v. Phillips, supra, “It is manifest that our decisions have regarded mortgages' as of a dual character — a conveyance of an estate in lands, and a security -for a debt; bearing one character in a court of lato and another in a court of equity. At law it is a conveyance of an estate in lands, with a -condition annexed which may defeat it. It comprehends the entire fee, leaving the mortgagor the right, on the performance of the condition, to [362] restore himself to his original estate. * * It would not comport with this theory, now too firmly engTafted in our law to be controverted, to assert that a conveyance by the mortgagee, though not operating an assignment of the mortgage debt, does not pass the legal title.” The legal title then being in the mortgagee, and by the terms of the mortgage subject to the defeasance condition, there is nothing to prevent the mortgagee from conveying the same by deed. Of course, the legal title when so conveyed by deed before the law day of the mortgage, would still be subject to the defeasance contained in the mortgage. However, counsel is mistaken in supposing that the conveyance was made before the law day in.the mortgage. The facts, as the' record in the case discloses, show that the deed from Hoffman and wife to Hoffman & 'Graves was executed after the law day of the mortgage from High and wife to Hoffman. The objection made to the introduction of certain deeds are not argued by counsel, besides Ave do not think there is any merit in the objections, and, therefore, will refrain from any discussion of the same. There is no error in the record, and the judgment is affirmed. .