DENSON, J.
Statutory action in the nature of ejectment for the recovery of land. Section 2611 of the Revised Code of 1867, provided that, in this statutory action, “it is sufficient for the plaintiff to- allege in his complaint, that he was possessed of the premises sued for, describing the same by its description at the land office, or when that cannot be -done, by metes and bounds, or other appropriate designation, and after his (right accrued, the defendant entered thereupon, and unlawfully withholds and detains the same.” The case of Bush v. Glover, 47 Ala. 167, was decided while the Revised Code was in force, and a complaint which failed to allege that the plaintiff was possessed of the premises sued for was held bad in that case.
Section 1530 of the Code of 1896, under which the complaint in the present suit is brought, and which relates to the same subject that section 2611 in the Revised Code of 1867 related to, provided that “the complaint is sufficient if it alleges that the. plaintiff was possessed of the premises, or has the legal title thereto.” (Italics ours.) The alternative italicized, it will be observed, makes the difference between the two sections, and places the present case without the influence of the. ruling made in Bush v. Glovr, supra. Count 2 contains the averments required by section 1530 of the Code of 1896, and is therefore not subject to the demurrer assigned to it.
The defendant pleaded the general issue, and this, by statutory provision, operated as an admission by defendant of possession of the premises and of course relieved the plaintiff of the burden of proving that fact. —Code 1896, § 1532.
The abstract of title, which the statute provides may be demanded in ejectment suits, should not be construed as meaning an abstract in the technical sense. The pur[487]*487pose of the statute is met if, in response to the demand, an abstract is furnished which is sufficiently specific to inform the party making the demand of the title upon which his adversary will rely. The court is of the opinion that the abstract furnished in this case is sufficiently specific to cover the mortgage from the defendants to the plaintiff and the deed executed by the mortgagee, and that the trial court committed no error in overruling the objections thereto on this ground.
The notes offered in evidence were competent to show that the debt secured by the mortgage was past due and default in payment, thereby putting an-end to the defendants’ right to retain possession of the premises and clothing plaintiff with the right to enter.
There is no law in operation in this state prohibitory of the competency of a payee as a witness to testify to the execution of a note by a living payor. If the court committed error in first allowing the notes to be introduced without proof of their execution, the error was cured by the subsequent testimony showing their execution.
The objection that the notes were signed by Sophie Jackson by mark, and without an attesting witness to her signature, if good in any event, was not valid at the time it was made, because it had not been made to appear that Sophie could not write. — Wimberly v. Dallas, 52 Ala. 196. But there was a charge, requested and refused, which presents the question of the validity of a note signed by mark without an attesting witness. At the common law a note may be signed by a mark, and a person may adopt a mark as his signature. No mention is made in the Code of the manner of executing promissory notes, and therefore the judgment of the court is that section 1 of the Code is inapplicable to. such notes. [488]*488—Wimberly v. Dallas, supra; Bickley v. Keenan & Co., 60 Ala. 293; Bates v. Harte, 124 Ala. 427, 26 Smith. 898, 82 Am. St. Rep. 186.
The plaintiff offered in evidence a paper writing, purporting on its face to be a deed from George Tribble, mortgagee, to George Tribble (himself) as purchaser at a recited foreclosure sale made under the mortgage. The mortgage empowers the mortgagee, on default made in payment of any part of the debt, to sell the mortgaged premises after advertising, etc., and provides that the mortgagee may become the purchaser at the sale. There is no express authority given in the mortgage to the mortgagee to make title to the purchaser. But, as was said in Lang v. Stansel, 106 Ala. 389, 397, 17 South. 519, 521, “though the conveyance is silent as to the execution by him (the mortgagee) of a conveyance, the power to convey is manifestly included in the power to sell; otherwise, the sale would be incomplete, and the trust but partially executed.” — 27 Cyc. 1495. While this was said in respect to the power contained in a deed of trust given to secure a debt, it is equally applicable to- a mortgage. Therefore, applying the principle to the mortgage here, had a third party been the purchaser at the sale made thereunder, we have no doubt that the mortgagee could have made a valid conveyance of title to him as such purchaser, under the power contained in the mortgage. Had he the authority to make the deed to himself as purchaser at that sale? In' 1 Devlin on Deeds, § 420, it is said: “When the mortgagee has the power to purchase at a sale, and does become the purchaser, he has the power to execute a deed to himself which will convey the title.” See, also, to the same effect, 2 Jones on Mortgages, § 1892; 27 Cyc. 1495; Hall v. Bliss, 118 Mass. 554, 19 Am. Rep. 476; Woonsocket v. American Worsted Co., 13 R. I. 225; Marsh v. Hubbard, [489]*48950 Tex. 203. We have no decision on the question in this-jurisdiction. In Sanders v. Cassady & Blackwell, 86 Ala. 246, 5 South. 503, it was left open. The reasoning employed hy the Massachusetts court, in Hall v. Bliss, supra, is convincing to us that, the mortgagee being given the power to purchase at his own sale, he may, if he becomes such purchaser, make a valid conveyance to himself in that capacity as donee of the power in the mortgage.
In this case the proof shows that the mortgage Avas foreclosed by a sale under the power, and that the mortgagee became the purchaser and made a deed to himself. There is no proof, aliunde the recitals in the deed, that the terms prescribed by the mortgage were complied with; but the recitals of the deed shOAV such compliance, and. they are prima facie evidence' of the facts stated therein, as against the mortgagor. — Naugher v. Sparks, 110 Ala. 572, 18 South. 45; Williamson v. Mayer Bros., 117 Ala. 253, 23 South. 3. But, suppose there had been no deed executed to the mortgagee, who purchased at the sale; then, according to the common law, the legal title was already in him, and Avithout a deed he might maintain ejectment. — 2 Jones on Mortgages, § 1660.
Furthermore, the sale cut off the equity of redemption as effectually without as with a deed, and left the mortgagor only the statutory right of redemption, which might be exercised Avithin two years from the sale. Powers v. Andrews, 84 Ala. 289, 4 South. 263; Mewburn’s Heirs v. Bass, 82 Ala. 622, 2 South. 520; Ward v. Ward, 108 Ala. 278, 19 South. 354; Woodruff, v. Adair, 131 Ala. 530, 32 South. 515; Tipton v. Wortham, 93 Ala. 321, 9 South. 596. On these considerations the relation of mortgagor and mortgagee was severed between the parties, and the plaintiff stands, in this suit, not in the attitude of a mortgagee, but of purchaser at [490]*490the foreclosure sale.
Free access — add to your briefcase to read the full text and ask questions with AI
DENSON, J.
Statutory action in the nature of ejectment for the recovery of land. Section 2611 of the Revised Code of 1867, provided that, in this statutory action, “it is sufficient for the plaintiff to- allege in his complaint, that he was possessed of the premises sued for, describing the same by its description at the land office, or when that cannot be -done, by metes and bounds, or other appropriate designation, and after his (right accrued, the defendant entered thereupon, and unlawfully withholds and detains the same.” The case of Bush v. Glover, 47 Ala. 167, was decided while the Revised Code was in force, and a complaint which failed to allege that the plaintiff was possessed of the premises sued for was held bad in that case.
Section 1530 of the Code of 1896, under which the complaint in the present suit is brought, and which relates to the same subject that section 2611 in the Revised Code of 1867 related to, provided that “the complaint is sufficient if it alleges that the. plaintiff was possessed of the premises, or has the legal title thereto.” (Italics ours.) The alternative italicized, it will be observed, makes the difference between the two sections, and places the present case without the influence of the. ruling made in Bush v. Glovr, supra. Count 2 contains the averments required by section 1530 of the Code of 1896, and is therefore not subject to the demurrer assigned to it.
The defendant pleaded the general issue, and this, by statutory provision, operated as an admission by defendant of possession of the premises and of course relieved the plaintiff of the burden of proving that fact. —Code 1896, § 1532.
The abstract of title, which the statute provides may be demanded in ejectment suits, should not be construed as meaning an abstract in the technical sense. The pur[487]*487pose of the statute is met if, in response to the demand, an abstract is furnished which is sufficiently specific to inform the party making the demand of the title upon which his adversary will rely. The court is of the opinion that the abstract furnished in this case is sufficiently specific to cover the mortgage from the defendants to the plaintiff and the deed executed by the mortgagee, and that the trial court committed no error in overruling the objections thereto on this ground.
The notes offered in evidence were competent to show that the debt secured by the mortgage was past due and default in payment, thereby putting an-end to the defendants’ right to retain possession of the premises and clothing plaintiff with the right to enter.
There is no law in operation in this state prohibitory of the competency of a payee as a witness to testify to the execution of a note by a living payor. If the court committed error in first allowing the notes to be introduced without proof of their execution, the error was cured by the subsequent testimony showing their execution.
The objection that the notes were signed by Sophie Jackson by mark, and without an attesting witness to her signature, if good in any event, was not valid at the time it was made, because it had not been made to appear that Sophie could not write. — Wimberly v. Dallas, 52 Ala. 196. But there was a charge, requested and refused, which presents the question of the validity of a note signed by mark without an attesting witness. At the common law a note may be signed by a mark, and a person may adopt a mark as his signature. No mention is made in the Code of the manner of executing promissory notes, and therefore the judgment of the court is that section 1 of the Code is inapplicable to. such notes. [488]*488—Wimberly v. Dallas, supra; Bickley v. Keenan & Co., 60 Ala. 293; Bates v. Harte, 124 Ala. 427, 26 Smith. 898, 82 Am. St. Rep. 186.
The plaintiff offered in evidence a paper writing, purporting on its face to be a deed from George Tribble, mortgagee, to George Tribble (himself) as purchaser at a recited foreclosure sale made under the mortgage. The mortgage empowers the mortgagee, on default made in payment of any part of the debt, to sell the mortgaged premises after advertising, etc., and provides that the mortgagee may become the purchaser at the sale. There is no express authority given in the mortgage to the mortgagee to make title to the purchaser. But, as was said in Lang v. Stansel, 106 Ala. 389, 397, 17 South. 519, 521, “though the conveyance is silent as to the execution by him (the mortgagee) of a conveyance, the power to convey is manifestly included in the power to sell; otherwise, the sale would be incomplete, and the trust but partially executed.” — 27 Cyc. 1495. While this was said in respect to the power contained in a deed of trust given to secure a debt, it is equally applicable to- a mortgage. Therefore, applying the principle to the mortgage here, had a third party been the purchaser at the sale made thereunder, we have no doubt that the mortgagee could have made a valid conveyance of title to him as such purchaser, under the power contained in the mortgage. Had he the authority to make the deed to himself as purchaser at that sale? In' 1 Devlin on Deeds, § 420, it is said: “When the mortgagee has the power to purchase at a sale, and does become the purchaser, he has the power to execute a deed to himself which will convey the title.” See, also, to the same effect, 2 Jones on Mortgages, § 1892; 27 Cyc. 1495; Hall v. Bliss, 118 Mass. 554, 19 Am. Rep. 476; Woonsocket v. American Worsted Co., 13 R. I. 225; Marsh v. Hubbard, [489]*48950 Tex. 203. We have no decision on the question in this-jurisdiction. In Sanders v. Cassady & Blackwell, 86 Ala. 246, 5 South. 503, it was left open. The reasoning employed hy the Massachusetts court, in Hall v. Bliss, supra, is convincing to us that, the mortgagee being given the power to purchase at his own sale, he may, if he becomes such purchaser, make a valid conveyance to himself in that capacity as donee of the power in the mortgage.
In this case the proof shows that the mortgage Avas foreclosed by a sale under the power, and that the mortgagee became the purchaser and made a deed to himself. There is no proof, aliunde the recitals in the deed, that the terms prescribed by the mortgage were complied with; but the recitals of the deed shOAV such compliance, and. they are prima facie evidence' of the facts stated therein, as against the mortgagor. — Naugher v. Sparks, 110 Ala. 572, 18 South. 45; Williamson v. Mayer Bros., 117 Ala. 253, 23 South. 3. But, suppose there had been no deed executed to the mortgagee, who purchased at the sale; then, according to the common law, the legal title was already in him, and Avithout a deed he might maintain ejectment. — 2 Jones on Mortgages, § 1660.
Furthermore, the sale cut off the equity of redemption as effectually without as with a deed, and left the mortgagor only the statutory right of redemption, which might be exercised Avithin two years from the sale. Powers v. Andrews, 84 Ala. 289, 4 South. 263; Mewburn’s Heirs v. Bass, 82 Ala. 622, 2 South. 520; Ward v. Ward, 108 Ala. 278, 19 South. 354; Woodruff, v. Adair, 131 Ala. 530, 32 South. 515; Tipton v. Wortham, 93 Ala. 321, 9 South. 596. On these considerations the relation of mortgagor and mortgagee was severed between the parties, and the plaintiff stands, in this suit, not in the attitude of a mortgagee, but of purchaser at [490]*490the foreclosure sale. This being true, there is no room for the operation of the statute (Code 1896, § 1547) in respect to having the amount due on the mortgage indebtedness ascertained by the jury and stated in the judgment (Matkin v. Marx, 96 Ala. 501, 11 South. 633); and the motion for a new trial was by the lower court properly overruled.
The evidence shows that the plaintiff hypothecated the notes and mortgage to a bank as collateral security for a loan obtained. A written transfer appears to be indorsed on the mortgage, but without the name of the transferee; the space for such name being left blank. It was not competent to allow proof that it was intended the name of the bank should occupy the blank space in the indorsement. The transfer did not take the legal title out of the mortgagee, and he could maintain ejectment — especially so when, in connection with the defect in the transfer, the proof shows the loan had been paid and the notes and mortgage returned to the plaintiff before the commencement of the suit.
Notwithstanding the rule of practice provides that “only one cotmsel on each side shall examine a witness,” it is within the irrevisable discretion of the court to permit a party’s attorney to take up the examination of a witness after the party himself has questioned the witness to some extetnt.
If the defendants are in position to show adverse possession in this cause, in the event the mortgage is valid (2 Mayfield’s Dig. p. 85, §§ 187, 188; Brunson v. Morgan, 84 Ala. 598, 4 South. 589), there is no evidence in this case affording an inference of such possession. Consequently the court properly gave charge numbered 2, requested by the pialntiff.
The defendant’s argument to show error in the court’s refusal to give their charge numbered 11 goes on to the assumption that the burden rested on the plaintiff [491]*491to prove affirmatively the averment, in the first count of the complaint, of possession of the premises by the plaintiff. The assumption is a false one in this case, and, of course, the argument falls with it.
The refusal of the court to give charges 15, and 29 of the defendants’ series may be justified on the ground that they are calculated to mislead a jury to believe that the court, in giving them, assumes as matter of Jaw, that the suretyship of the Avife is shown, whereas the burden of proof on that subject Avas on the Avife, and the evidence cannot be said to be without conflict. Furthermore, the rulings in respect to these charges only affect Sophie Jackson, and it is doubtful if the assignments of error in respect thereto' should be considered; no severance having been asked for. — Bedell v. New England, etc., Co., 91 Ala. 325, 8 South. 494.
Charge 19 does not state the law correctly, and its refusal involves no error. — Code 1896, §§ 1536-1539..
Charge 22 is argumentative, and, besides, possesses the vice of not hypothesizing materiality of the fact of which the evidence is offered.. Its refusal was proper.
We have already noticed that the transfer or hypothecation of the mortgage to secure the loan was ineffectual to pass the title to the land out of the mortgagee, plaintiff. Consequently no error follows the refusal of charge 32, requested by defendants.
No reversible error is shown by the record, and the judgment of the court is affirmed.
Affirmed.
Tyson, C. J., and Anderson and McClellan, JJ., concur.