Bellenger v. Whitt

95 So. 10, 208 Ala. 655, 1922 Ala. LEXIS 373

• Court: Supreme Court of Alabama
• Decided: November 30, 1922
• Docket: 7 Div. 325.
• Status: Published

Opinion

SAYRE, .T.

Action of ejectment by appellant against appellee. The parties claim through a. common source of title, W. P. Whitt. Defendant is the son and heir at law of W. P. Whitt. Plaintiff deraigns title through a mortgage executed by W. P. Whitt to P.ellenger Bros., a partnership, and a purchase by plaintiff, a member of the firm, at a foreclosure sale. This mortgage was executed in 1892 and, if not paid, was in default in the fall of that year. In 1902 there was a foreclosure under the power contained in the mortgage, as indicated above, but the foreclosure deed was not executed until 1920. In 1906 plaintiff recovered judgment against W. P. Whitt in an action for this land, but this fact may he laid' out of view for the reason that the evidence fails to show dispossession thereunder, and without a dispossession by a writ against defendant in that cause the continuity of his holding was not interrupted. Bradford v. Wilson, 140 Ala. 633, 37 South. 295. W. P. Whitt remained in possession until 1918, when ho died. Since then defendant has been in possession. This action was brought December 20, 1920.

Defendant claimed, and introduced some evidence tending to support his claim, that the mortgage debt had been paid prior to the foreclosure. Such payment, if found by the jury, divested the title which had passed by the mortgage. Code 1907, § 4899; Abbett v. Page, 92 Ala. 571, 9 South. 332. But assuming this issue to have been determined in plaintiff’s favor, plaintiff showed a xiaper title, dating back to 1892, and that title should have prevailed unless, further, the possession meanwhile of defendant, or of defendant arid his ancestor, had been of a character to revest title in him or them. Ilambrick v. New England Mortgage Security Co., 100 Ala. 551, 13 South. 778. Possession by defendant’s ancestor as mortgagor, without qualifying incident, was pm'inissiVii and not hostile to the mortgagee. Christopher v. Schockley, 199 Ala. 081, 75 South. 158. In the absence of an open disclaimer of the mortgagee’s title, brought home to liis actual knowledge, the only principle available to a mortgagor in possession is the presumption of payment of the mortgage debt that arises after the lapse of 20 years. Coyle v. Wilkins, 57 Ala. 10S. But according to the undisxnited evidence—still assuming nonpayment of the debt—the original status of relationship between xdaintiff and defendant, or defendant's ancestor, had been changed. Under the terms of the mortgage the mortgagee, his agent or attorney, was authorized to execute a deed upon foreclosure. On the day of the foreclosure, the mortgagee’s agent or attorney made a certificate reciting-plaintiff’s purchase . along with the other facts; hut, as already noted, no deed was executed until after the lapse of 18 years. Nevertheless, it seems, this foreclosure vested in the plaintiff purchaser the same title that would have x>ussed to him under a formal instrument of conveyance. Garren v. Fields, 131 Ala. 304, 30' South. 775; Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 South. 105; Hambrick v. New England Mortgage Security Co., supra; Mewburn v. Bass, 82 Ala. 622, 2 South. 520; Cooper v.. Hornsby, 71 Ala. 62. At any rate, no reason is perceived why, as between the parties and their privies at least, no rexmgnant right having intervened, the deed executed under these circumstances should not be allowed to operate retrospectively. Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) 129, 8 Am. Dec. 407. Thereafter defendant and his predecessor in title must he regarded as holding the premises in subordination to xfiaintiff, and nothing short of an explicit disclaimer of that relation or a notorious assertion of right in himself, brought home to the actual knowledge of plaintiff, sufficed to change the character of the possession under which defend ant claims and render it adverse to plaintiff so as to vest title in liim under tlie statute of limitations of 10 years. Yancey v. S. & W. R. R. Co., 101 Ala. 234, 13 South. 311; Daniels v. Williams, 177 Ala. 140, 58 South. 419; 2 C. J. 143.

Evidence that defendant’s ancestor had paid taxes on the land in suit, while not of itself sufficient to establish title by adverse possession, would have tended, if offered in connection with other evidence of an adverse holding, to show the hostile character of defendant’s possession; but. as we read the record, there was no evidence going to show a holding by defendant or his predecessor in hostility to plaintiff and brought to his knowledge as the decisions in such cases require. However, the evidence as to payment of the mortgage debt, inconclusive though it may have been, required that the general question of right and title be submitted to the jury. The court erred therefore in giving the general charge for defendant.

Reversed and remanded.

ANDERSON, O. J., and GARDNER and MILLER, JJ., concur. '