Capehart v. McGahey

31 So. 503, 132 Ala. 334, 1902 Ala. LEXIS 68

• Court: Supreme Court of Alabama
• Decided: February 13, 1902
• Status: Published

Opinion

McCLELLAN, C. J.

— The certificate of purchase at tax sale by Myers of the land in suit was assigned to Lusk & Bell by a separate writing and not “by indorsement.”—Code, § 4067. Lusk & Bell, therefore, were not parties to ivhom the probate judge was authorized to execute a deed to the land, and the writing purporting to be a deed which that officer signed, etc., and delivered to- them is -ineffective as a conveyance of the land to them, and void.—Alexander v. Savage, 90 Ala. 383. It follows that the plaintiff took no title by the alleged deed of Lusk & Bell to him. His claim of title through the Columbus City Mining, Manufacturing & Development Co. is equally abortive as against this defendant. The legal title to the land passed from Capehart into the Land Mortgage Investment and Agency Company by the mortgage of December 10th, 1888, and has since passed by mesne conveyances, assignments, and a foreclosure sale into the defendant, McCahey. If it be conceded that the said Columbus Company was not made a party to the bill under which the foreclosure was had, tFe fact would have bad no effect upon tbe legal title or its residence in McGabey. Tbe only occasion for bringing tbe Columbus Company into tbe foreclosure suit was to cut off — not any legal title it bad, for under Capebart’s deed it bad no legal title, but — its equity of redemption, and tbe only consequence of failing to make it a party would be to leave it with tbe equity of redemption from tbe senior mortgagee or from tbe defendant wbo bas succeeded to tbe title of tbe senior mortgagee.

The plaintiff having failed to prove any legal title to tbe land sought to be recovered, tbe court properly gave tbe affirmative charge for tbe defendant.

Affirmed.