Bush v. Thomas

55 So. 622, 172 Ala. 77, 1911 Ala. LEXIS 155

• Court: Supreme Court of Alabama
• Decided: May 11, 1911
• Status: Published

Opinion

SIMPSON, J.

This is a statutory action of ejectment, by the appellant against the appellee.

The plaintiff traced title through á mortgage from David Pratt to Stephen Ellis, and a sale under partition proceedings by the heirs of said Stephen Ellis, and the defendant claimed under conveyance from said David Pratt. So the only title which the heirs of Stephen Ellis had, at the time of the partition proceedings, was the legal title supposed to be vested in them by said mortgage. Neither said Pratt nor Ms heirs were parties to said proceedings. It is laid down as a principle, by authorities, that as against the mortgagor the mortgagees cannot, by partition proceedings, split up the mortgaged property into fragments, and thus divide up Ms right- of redemption. — 30 Cyc. 194; Ewer v. Hobbs, 5 Metc. (Mass.) 1.

However that may be, the evidence in this case tended to show that the debt for which the mortgage was given had been paid long before the partition proceedings were instituted, which, under our statute, revested the title to the property in the mortgagor, Pratt. — Code of 1907, § 4899.

There was no error in overruling the demurrer to plea 2, nor in sustaining the demurrer to the replication to said plea 2. At any rate, if erroneous, it would have been error without- injury, as the only proper plea in an action of ejectment is the general issue, and the matters set out in said plea and replication could be made available under the general issue.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Somerville, JJ., concur.