Abbett v. Page

92 Ala. 571 | Ala. | 1890

WALKER, J.

The estoppel of a grantor, who remains in. possession of land after a conveyance with general warranty, to set up a claim to the land inimical to the rights of the-grantee, can not be extended so far as to prevent the grantor’s acquisition of title by a subsequent holding adverse to the' grantee; and the title so acquired by adverse possession does not pass to the grantee by operation of the covenants of warranty in the deed. The estoppel upon the grantor is similar to that operating in favor of a landlord as against his tenant so long' as that relation exists and is recognized between them. But the tenant may repudiate the relationship and set up an adyerse claim and possession in himself, which, when properly brought home, whether expressly or by implication, to the knowledge of the landlord, will put in operation the statute of limitations in the tenant’s favor.— Wells v. Sheerer, 78 Ala. 142. In like manner, the grantor, who by remaining in possession becomes the grantee’s tenant, may repudiate the relationship evidenced by his deed and may re-acquire title by an adverse possession for the requisite length of time. No more than in the case of an ordinary tenancy, it is necessary that such possession should have been hostile in its inception. Full effect is given to the deed when it is held to vest the absolute title at its delivery, and that it estops the grantor from setting-up any other title as then held adversely. A subsequent acquisition of title by adverse possession is no more a breach of warranty than w-ould be a re-conveyance by the grantee to the grantor. So' far as the parties to this suit are concerned, the deed to the appellant vested in him a perfect legal title. It does not appear that there has been a breach of any of the warranties in that instrument. In the absence of such breach, the warranties do not operate to preclude the grantor from holding an independent title subsequently acquired. Appellant’s title could be as effectually divested by an adverse possession as by his own conveyance, and no more in the one case than in the other would such divestiture of title be defeated by the warranties in the deed. If Mrs. Booth and the appellees claiming under her have, bv adverse possession, acquired title to a portion of the lot sued for, the warranties in the deed to appellant can not operate to vest that title in him or to secure to him the right to recover possession of the land. Stearns v. Hendersass, 9 Cush. 407; Sherman v. Kane, 86 N. Y. 57; Rawle on Covenants for Title, (5th Ed.) p. 374; 1 Am. & Eng. Encyc. of Law, 247.

At the date of her deed to appellant, Mrs. Booth was living on the south end of the lot described in the deed. She continued to live there up to the time of her death in 1882. It was not improper to admit proof that, after appellant had gone into possession of the north end of the lot, Mrs. Booth pointed out to him what she called the dividing line between them, and that thereupon appellant built a fence along that line. This -evidence was competent, not to show a mistake in the conveyance as to the boundary line therein described, but upon the •question of the alleged adverse character of the possession retained by Mrs. Booth of the portion of the lot south of the line.

There was no error in refusing to give charge 2. It is urged that this charge should have been given because there was no evidence to show any possession between the death of Mrs. Booth and the entry by Banks, the landlord of the defendants Page and Nobles. If the proof shows that Mrs. Booth had adverse possession, in the absence of evidence to the contrary, that possession may be presumed to have continued, and that her heirs or personal representative succeeded thereto. Marston v. Rowe, 43 Ala. 271. Nor was there error in allowing a witness to be asked if the plaintiff knew that Miss Davis, to whom Mrs. Booth had made a deed to a portion of the lot, had improved her property. A person’s knowledge of a thing is a fact to which a witness may testify. If it was desired to •ascertain the grounds upon which the witness based his conclusion as to such facts, this could have been done by a cross-examination. — Elliott v. Stocks, 67 Ala. 290; Hoodv. Disston, 90 Ala. 277; Chenault v. Walker, 14 Ala. 151.

The defendants did not rely alone on the claim of title by adverse possession. The plaintiff’s right of recovery was also denied on the ground that there had been no re-conveyance to him of the legal title which was vested in Mrs. Booth by his mortgage to her to secure the deferred payments on the purchase of the lot. The defendants did not claim that the mortgage debt had not been paid. The evidence was conflicting as to whether the payment was made before or after the law day of the mortgage. Under the common law as recog-, nized in this State, payment of the mortgage debt did not divest the legal title of the mortgagee.- — Jackson v. Scott, 67 Ala. 99; Slaughter v. Doe, Ib. 494. By the act approved November 28,1884, it was provided, that the payment of a debt, secured by mortgage, shall have the effect to divest the title out of the mortgagee, or his assigns, whether such payment is made before or after the maturity of the debt, and whether said mortgage is made, or paid, before or after the passage of the act., — Acts of 1884-85, p. 73; Code of 1886r § 1870. Before the passage of this act, upon payment after breach of condition, there was left in the mortgagee, who had not properly released and discharged his claim, a bare legal title, held in trust for the sole benefit of the’ mortgagor and those claiming under him. — Baker v. Gavitt, 128 Mass 93; 2 Jones on Mortgages, § 889. Common law rules as to conveyances of real estate operated to preserve outstanding against • the beneficial owner of the property a naked legal right, which, as said by an eminent commentator on constitutional law, it is usually, unjust,to insist upon, and which no constitutional provision was' ever designed to protect. — Cooley on Constitutional Limitations, (6th Ed.) 464; Ewell v. Daggs, 108 U. S. 143-151. Courts of equity all along recognized the true character of the mortgage as a mere security, upon the discharge of the debt treated the mortgage as discharged; and, on application of the mortgagor, would compel a release or re-conveyance by the mortgagee of the legal title. The abolition of the requirement that the mortgagor must apply to a court of equity for relief in such case affects no substantial interest of the mortgagee, who held only a security for a debt which has beeii paid; .and he can not claim a vested right to compel the mortgagor to adopt a special mode of procedure to to remove a mere technical obstacle to the recovery -of his property. This right of a mortgagee, who has been fully paid,, to set up the legal title conveyed by the mortgage to defeat the mortgagor’s recovery, formed no element of the property interest secured by the contract of mortgage. It was merely a privilege that belonged to the remedy. ' Such a defense is unconscionable, and the power to interpose it may be taken away by legislation extending the benefits of the remedy afforded thereby to past as well as to future transactions. Read v. Plattsmouth, 107 U. S. 568; Ewell v. Daggs, supra; 2 Am. & Eng. Encyc. of Law, 759-760; Ex parte Buckley, 53 Ala. 42; 3 Brick. Dig., 784. The act above referred to operated to preclude the mortgagee or her assigns from claiming title under the mortgage, if the debt secured thereby had been paid. Charge numbered 6 requested by the plaintiff should have- been given. For the error in refusing to give this charge, the judgment of the Circuit Court must be reversed.

Beversed and remanded.