Little v. Teague

Chalmers, J., delivered the opinion of the court. In 1866 W. B. Little mortgaged the land here sued for, to one Rosamond. In August, 1869, Rosamond, without having foreclosed his mortgage, conveyed the land to Mrs. Abigail Little, wife of the said W. B., executing a warranty deed thereto. Little and his wife had previously been and thereafter remained in possession of the land. Little died in 1874, and in 1879 Mrs. Little borrowed money from plaintiff Teague, and secured its repayment by a trust-deed upon the land. The debt falling due and remaining unpaid, the land was sold under the trust-deed and bought in by Teague. Mrs. Little being now dead, this action of ejectment is brought for the recovery of the land against her children, who are in possession. The defence set up is that plaintiff has only a mortgage upon the land, inasmuch as he must trace back through Mrs. Little, to Rosamond, who was only a mortgagee. Technically, this is correct; but the proof shows that Mrs. Little, jointly with her husband, so long as ho lived, and solely thereafter, occupied the- land from the date of the execution of Rosa-mond’s deed to herself. More than ten years intervened between that time and her own death, in 1879. True, during a large portion of this time she occupied, jointly with her husband, but the occupancy should be referred to her who had the paper title, rather than to him who had in form, at least, conveyed it away. The sole question discussed by counsel on either side is, whether the instrument executed to Rosamond by B. W. Little, was a deed with a defeasance, which became an absolute conveyance by non-compliance with the conditions of the defeasance, or whether it was a mortgage. We think that it was undoubtedly a mortgage, but do not think that this affects the result. If it was originally a deed in fee, or subsequently became one, then Rosamond first, and Mrs. Little af-tei’wards, was owner, and Teague, of course, has a perfect title as her grantee. If it was a mortgage, then Mrs. Little, as the assignee of Rosamond, was for more than ten years a mort [117] gagee in possession after condition broken, and acquired a perfect title by limitation, which title, of course, passed to Teague. Code of 1857, p. 399, Art. III.; Code 1871, sect. 2149 ; Code 1880, sect. 2686. Judgment affirmed.