38 Ala. 292 | Ala. | 1862
-The bill in this ease is to be regarded as filed by the assignee of an equity of redemption, for the purpose of redeeming the mortgaged lands. — Paulling v. Barron, Meade & Co., 32 Ala. 9. It appears very, conclusively, that the mortgagees were never in possession of the laud, until the recovery in the action of trespass to try titles'by Meade against the complainant ; and we have no evidence that.either of them ever received any rent for the land after that- recovery. Lesueur, the only witness who testifies on the subject* deposes that, the houses and fences having-.gone into decay,' he,- as the agent of the defendants,- permitted the coroplainant-to have the place as. a pasture; and we infer from the testimony that the complainant paid no rent. Upon this state of the case, the defendants’ are not chargeable with'rents, other than those recovered in the action of trespassto try titles. The mortgagee is-only responsible, in- a suit to redeem by the mortgagor or his assignee, for rents-actually received, unless he has been guilty of fraud-or willful neglect. — 3 Powell on Mortgages, 939 a; 1 Hilliard on Mortgages, 418, § 3.
The crediting of the mortgage debt with the amount of rents received by one of the mortgagees, Was proper. It is conceivable that a mortgagee might-have a right-to the rents and profits of the mortgaged landderived from a source extrinsic and independent*of the mortgage,- If a mortgagee were by virtue of such a right to-receive rents, the sum so received could not be appropriated in abatement of.the mortgage debt. In this case, the mortgagee in fact had- no right to the rents and profits, except such a3 the mortgage gave,--
Judgments may be conclusive as to the facts necessarily involved in them. — Wittick v. Traun, 25 Ala. 317; Chamberlain v. Gaillard, 26 Ala. 504 ; Saltmarsh v. Bower, 34 Ala. 613. That the plaintiff in the judgment derived his claim to the damages recovered fronr-a source independent of the mortgage, is not necessarily* involved ih the judgment, or implied by it.- It-may as well comport with the supposition, that it was submitted to by»the defendant upon the idea that a right to recover'enured teethe plaintiff as a member of the partnership to which* the mortgage was given, or that the plaintiff had acquired-the interest of the other mortgagee. - The inference attempted to he forced upon the complainant!- from his submission-to-the assessment of damages,- -is not a necessary deduction, and he can not be precluded from" asserting the- contrary. As mortgagee, the defendant Mfeade had a-right to receive the rents and profits. We think his own answer-shows, that he had no other real right. - The pretense that-he had acquired a light by the-purchase at execution sale, is met with a fiat negation by the decision of this court when we before
The mortgagees are not entitled to have from the com.pkinant any ie,e.s which they may have paid their attorneys.
On the appeal by the complainant, the chaqcellor’a decree is affirmed; on the appeal by the defendants, the decree is reversed, and the cause remanded.