R. W. WALKER, J.
(After stating the facts as above copied.) The questions to be tried in the court below, were — 1st, who had the best right of possession of the slip of six or seven feet north of the old fence ; ancfi 2d, who had the best right of possession of the remainder of the land sued for. We shall not attempt to answer these questions, but will confine ourselves .to an examination of the several charges given and refused. ToUhe first and fifth charges given, no objection has been made iil the arguments submitted on behalf of thaappellant.
[1.] The obvious meaning oL the second charge was, that the effect of the agreement and judgment in the Chastang suit, if payment was made according to the agreement, was to divest the heirs of Chastang of title to the lands in controversy, and to transfer\ to > Stewart & Easton such an interest in the parcels claimed by them in that suit, as would enable them to maintain ejectment; provided that, at the time of the recovery and agreement, the possession was with Stewart & Easton.
While it may be admitted, that the judgment in the Chastang suit, followed by -the ’required payment by [354] Stewart & Easton, did not, as against persons not parties or privies to the record, operate a conveyance of the title of Chastang’s heirs to Stewart & Easton, it cannot be doubted, tliat all persons belonging.to either of these classes are estopped by the record from denying that, by such judgment and payment, Stewart & Easton did acquire the title of Chastang’s heirs, to the parcels claimed by them. The record of that suit shows, that Knox was served with the declaration and the usual notice from the casual ejector. This was sufficient to bring him into court, and might, perhaps, justify us in holding him bound by the estoppel of-the judgment, .although he did not come in and make himself defendant to the action. — Cruise v. Riddle, 21 Ala. 791; 2 Phill. Ev. (C. & H’s Notes, Edwards’ ed. 1859,) p. 8, note 253, p. 11-42, note 270 ; 3 ib. 625 ; Shumake v. Nelms, 25 Ala. 135.
But we need not rest our decision on this single ground. The evidence is all set out; and the charge we are considering,, as well as-all .the others, must be construed in connection with the evidence. The evidence tended to show that, when .the Chastang suit was begun, Knox was in .possession, as,, the. tenant of Eslava, of the whole of lot number four, and all that part of lot number three, which lies south of the old place; that pending the suit, Eslava transferred his -possession to Stewart & Easton; that, by his consent, and direction, Knox attorned to Stewart & Easton, who made themselves defendants to the action as landlords of .Knox; and that matters stood thus when the judgment in the ejectmeut suit was rendered. The evidence that Knox, being already in possession, attorned to them, and became their tenant, is the only evidence that was offered, tending to show that Stewart & Easton were, at the time, of the recovery, in possession of the land claimed by them. Unless, therefore, Knox was their tenant, they were not in possession at all, and they were only in possession to the extent to which he was their tenant. In effect, then, the charge was that, if, at the time of the recovery, Knox was in possession as the tenant [355] of-Stewart-^ Easton, the agreement and recovery, and payment 'in -pursuance thereof, operated a divestiture of the Chastang title,' -and a transfer to Stewart & Easton of such an interest in the land which Knox held us their tenant,.as would enable them'to maintain ejectment.
As we have seen, the record of the Chastang suit shows that Knox was served with the declaration and notice, and tfrfit Stewart ■& Easton made themselves defendants to the action. Now;-if in addition, it was proved that, pending the suit, Knox became the tenant of Stewart & Easton, and so remained until the recovery, it cannot be doubted, we think, that be is bound by the judgment, so far as it relates to the land of which he was in possession as the tenant -of Stewart & Easton, and is thereby estopped from denying that, as to that land, the recovery and payment did effect a -divestiture of the title of the Chastang heirs, and the transfer to Stewart & Easton of -such an interest-as-would support an ejectment. — See 2 Phill. Ev. (C. & H’s Notes, Edward’s ed. 1859,) p. 15, note 260 ; ib. p. 19, note 261; Jackson v. Stone, 13 Johns. 447; Shumake v. Nelms, 25 Ala. 126 (135); Howard v. Kennedy, 4 Ala. 592.
■[2.] The court -did not -decide that Stewart & Easton were in possession, but left that question to the jury, and instructed them that the eflec-t of the recovery, as the foundation ¡of a right to maintain ejectment, would depend upon their being in possession-. As the only possession they attempted to prove was the possession of Knox as flieir tenant, it follows that the appellant cannot have been injured by the second charge. A charge which is correct in the particular case, though incorrect as a general legal proposition, is not a ground for reversal. There can be no doubt 'that,' when the action of ejectment was brought by the heirs of Chastang, they had the legal title to all of this property. — Baker v Chastang, 18 Ala. 417.
As no part of the lot to which the third charge relates was in controversy here, the defendant could not have been inj tired by it.
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R. W. WALKER, J.
(After stating the facts as above copied.) The questions to be tried in the court below, were — 1st, who had the best right of possession of the slip of six or seven feet north of the old fence ; ancfi 2d, who had the best right of possession of the remainder of the land sued for. We shall not attempt to answer these questions, but will confine ourselves .to an examination of the several charges given and refused. ToUhe first and fifth charges given, no objection has been made iil the arguments submitted on behalf of thaappellant.
[1.] The obvious meaning oL the second charge was, that the effect of the agreement and judgment in the Chastang suit, if payment was made according to the agreement, was to divest the heirs of Chastang of title to the lands in controversy, and to transfer\ to > Stewart & Easton such an interest in the parcels claimed by them in that suit, as would enable them to maintain ejectment; provided that, at the time of the recovery and agreement, the possession was with Stewart & Easton.
While it may be admitted, that the judgment in the Chastang suit, followed by -the ’required payment by [354] Stewart & Easton, did not, as against persons not parties or privies to the record, operate a conveyance of the title of Chastang’s heirs to Stewart & Easton, it cannot be doubted, tliat all persons belonging.to either of these classes are estopped by the record from denying that, by such judgment and payment, Stewart & Easton did acquire the title of Chastang’s heirs, to the parcels claimed by them. The record of that suit shows, that Knox was served with the declaration and the usual notice from the casual ejector. This was sufficient to bring him into court, and might, perhaps, justify us in holding him bound by the estoppel of-the judgment, .although he did not come in and make himself defendant to the action. — Cruise v. Riddle, 21 Ala. 791; 2 Phill. Ev. (C. & H’s Notes, Edwards’ ed. 1859,) p. 8, note 253, p. 11-42, note 270 ; 3 ib. 625 ; Shumake v. Nelms, 25 Ala. 135.
But we need not rest our decision on this single ground. The evidence is all set out; and the charge we are considering,, as well as-all .the others, must be construed in connection with the evidence. The evidence tended to show that, when .the Chastang suit was begun, Knox was in .possession, as,, the. tenant of Eslava, of the whole of lot number four, and all that part of lot number three, which lies south of the old place; that pending the suit, Eslava transferred his -possession to Stewart & Easton; that, by his consent, and direction, Knox attorned to Stewart & Easton, who made themselves defendants to the action as landlords of .Knox; and that matters stood thus when the judgment in the ejectmeut suit was rendered. The evidence that Knox, being already in possession, attorned to them, and became their tenant, is the only evidence that was offered, tending to show that Stewart & Easton were, at the time, of the recovery, in possession of the land claimed by them. Unless, therefore, Knox was their tenant, they were not in possession at all, and they were only in possession to the extent to which he was their tenant. In effect, then, the charge was that, if, at the time of the recovery, Knox was in possession as the tenant [355] of-Stewart-^ Easton, the agreement and recovery, and payment 'in -pursuance thereof, operated a divestiture of the Chastang title,' -and a transfer to Stewart & Easton of such an interest in the land which Knox held us their tenant,.as would enable them'to maintain ejectment.
As we have seen, the record of the Chastang suit shows that Knox was served with the declaration and notice, and tfrfit Stewart ■& Easton made themselves defendants to the action. Now;-if in addition, it was proved that, pending the suit, Knox became the tenant of Stewart & Easton, and so remained until the recovery, it cannot be doubted, we think, that be is bound by the judgment, so far as it relates to the land of which he was in possession as the tenant -of Stewart & Easton, and is thereby estopped from denying that, as to that land, the recovery and payment did effect a -divestiture of the title of the Chastang heirs, and the transfer to Stewart & Easton of -such an interest-as-would support an ejectment. — See 2 Phill. Ev. (C. & H’s Notes, Edward’s ed. 1859,) p. 15, note 260 ; ib. p. 19, note 261; Jackson v. Stone, 13 Johns. 447; Shumake v. Nelms, 25 Ala. 126 (135); Howard v. Kennedy, 4 Ala. 592.
■[2.] The court -did not -decide that Stewart & Easton were in possession, but left that question to the jury, and instructed them that the eflec-t of the recovery, as the foundation ¡of a right to maintain ejectment, would depend upon their being in possession-. As the only possession they attempted to prove was the possession of Knox as flieir tenant, it follows that the appellant cannot have been injured by the second charge. A charge which is correct in the particular case, though incorrect as a general legal proposition, is not a ground for reversal. There can be no doubt 'that,' when the action of ejectment was brought by the heirs of Chastang, they had the legal title to all of this property. — Baker v Chastang, 18 Ala. 417.
As no part of the lot to which the third charge relates was in controversy here, the defendant could not have been inj tired by it.
[3.] The fourth charge given, and the third and fourth [356] charges refused, can best be considered together. Knox, as already noticed, was served with the declaration in the Chastang suit; and we have seem that, if, in addition to this, it was proved that he was ,the tenant of Stewart & Easton, who made themselves defendants-'to the action, he is estopped from denying that, as¡to the land held by him as their tenant, they have been invested with the paramount title of the Chastang heirs. Hence, if there was error in the fourth charge, it was erroiuwithout injury. It is said, however, that notwithstanding the attornment of Knox to Stewart & Easton, (whieh the evidence-tended to establish,) he was not, in legal judgment, their tenant; that when Eslava, in 1848, mortgaged,the property to Cruzat, Knox became, by operation, of .law, the tenant of Cruzat, the mortgagee; air.d that the subsequent attornment to Stewart & Eastoq, who derived title under a mortgage younger than Cruza,t’s, had no consideration to support it, and was-void. Bu^, as against all persons, except the mortgagee and those claiming under him, the mortgagor is considered as owner of the land, so long as he remains in possession of it; and subject to the lien of the mortgage, the legal rights and remedies of others may be sought, asserted, and enforced, in the same -manner as if no such mortgage existed. — Doe v. McLoskey, 1 Ala. 708; Coote on Mortgages, 322-7, and notes. Accordingly, the mortgagor in possession may hire or lease the mortgaged property, and receive the rents and profits, until the mortgagee gives notice to the tenant not to pay to the mortgagor. — Hutchinson v. Dearing, 20 Ala. 802; Mansony v. United States Bank, 4 Ala. 735; Branch Bank v. Fry, 23 Ala. 773. There was no evidence that Cruzat ever entered, or Remanded .possession of Eslava or his vendees, or in any manner asserted against the latter his rights under the .mortgage. The mortgagor and his vendees being thus left in undisturbed possession, the attornment of Knox to Stewart & Easton was valid and effectual.
[4.] There was no evidence to sustain the first and second charges asked by the defendant. Being abstract, the court did not err in refusing to give them.
[357] [5.] We cannot assent to the proposition involved in the fifth charge asked, — that when the vendee of a mortgagor purchases in the paramount outstanding title of a third person, the purchase enures to the benefit of the mortgagee, and operates as a confirmation of his title.
It is very properly conceded by the counsel for the appellee, that the plaintiff has no right to recover any part of the Johnson lot, allowing to the same a front of thirty, and a depth of one hundred and fifteen feet. It appears, however, that the verdict and judgment embrace a part of this lot; for the recovery is for all the land west of one hundred feet from St. Emanuel street; in other words, the recovery includes fifteen feet from the west side of the Johnson lot, to which the plaintiff has no claim. But this matter is not involved in any of the exceptions brought before us; and as the plaintiff expresses a willingness to enter a remittitur as to this part of the recovery whenever called upon, it is not likely that the mistake will inj ure the defendant.
Judgment affirmed.