95 So. 10 | Ala. | 1922
Action of ejectment by appellant against appellee. The parties claim through a common source of title, W. P. Whitt. Defendant is the son and heir at law of W. P. Whitt. Plaintiff deraigns title through a mortgage executed by W. P. Whitt to Bellenger Bros., a partnership, and a purchase by plaintiff, a member of the firm, at a foreclosure sale. This mortgage was executed in 1892 and, if not paid, was in default in the fall of that year. In 1902 there was a foreclosure under the power contained in the mortgage, as indicated above, but the foreclosure deed was not executed until 1920. In 1906 plaintiff recovered judgment against W. P. Whitt in an action for this land, but this fact may be laid out of view for the reason that the evidence fails to show dispossession thereunder, and without a dispossession by a writ against defendant in that cause the continuity of his holding was not interrupted. Bradford v. Wilson,
Defendant claimed, and introduced some evidence tending to support his claim, that the mortgage debt had been paid prior to the foreclosure. Such payment, if found by the jury, divested the title which had passed by the mortgage. Code 1907, § 4899; Abbett v. Page,
Evidence that defendant's ancestor had paid taxes on the land in suit, while not of itself sufficient to establish title by adverse possession, would have tended, if offered in connection with other evidence of an adverse holding, to show the hostile character of defendant's possession; but, as we read the record, there was no evidence going to show a holding by defendant or his predecessor in hostility to plaintiff and brought to his knowledge as the decisions in such cases require. However, the evidence as to payment of the mortgage debt, inconclusive though it may have been, required that the general question of right and title be submitted to the jury. The court erred therefore in giving the general charge for defendant.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.