Foster v. Carlisle

42 So. 441, 148 Ala. 259, 1906 Ala. LEXIS 328

• Court: Supreme Court of Alabama
• Decided: November 29, 1906
• Status: Published

Opinion

McCLELLAN, J.

— Statutory action in the nature of ejectment. Affirmative charge given for defendants. Plaintiffs appeal.

It seems to be conceded that the turning point on the trial was the exclusion of an unpaid mortgage, a link in plaintiffs’ chain of title, on which was indorsed the following credit : “Rec’d on within note & mortgage f1,000.00 (one thousand dollars) September 19, 1898, for lot” — which date ivas several years after the law day of the mortgage, and after default in the payment thereof. Of even date with the credit quoted the mortgagor executed and delivered to the mortgagee a deed to the premises mentioned in the credit. It has been repeatedly-adjudged by this court that a mortgage of land possesses a dual character, “bearing one in a court of law and another in a court of equity.” It is also settled in this state that in a court of law, after the law day of the mortgage and default in the performance of the condition as stipulated in the instrument, the estate in fee in the realty, there being no contractual conditions inhibiting it, vests absolutely in the mortgagee, leaving only the equity of redemption in the mortgagor.— Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Childers v. Monette, 54 Ala. 317; Draper v. Walker, 98 Ala. 310, 13 South. 595; Fields v. Clayton, 117 Ala. 538, 23 South. 530, 67 Am. St. Rep. 189. Of this equity of redemption, in the law court, no notice can be taken. At law, whenever the legal and-equitable titles or interests coincide in the same person, without an intermediate vested estate, the equitable becomes extinguished.—Welsh v. Phillips, supra; 20 Am. & Eng. Ency. Law (2d Ed.) p. 588. It results, in this case, that on September 19, 1898, only the equity of redemption resided in the mortgagor, the legal title having become absolute in the mortgage; and the conveyance of that date affected only to- convey to the mortgagee this equity of redemption, and in him was absorbed by the legal title conveyed by the mortgage to him. There was no merger in the mortgagor, because no title recognizable in a law court passed to him by reason of the credit indorsed on the mortgage. It was not of sufficient formality to pass title. And partial payment of the mortgage debt did not operate to divest mortgagee’s title.— McKinnin v. Lessley, 89 Ala. 625, 8 South. 9. The trial court, therefore, erred in the exclusion of the mortgage.

There is no merit in the other assignments of error. For the error stated, the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, O. J., and Dowdell and.Anderson, JJ., concur.