25 Ala. 152 | Ala. | 1854
In order to ascertain the rights and remedies of the parties to this record, it is necessary to ascertain the true state of the title to. the premises at the time they were levied on by the sheriff of Lowndes county, at whose sale Cheek became the purchaser.
Turner is the source of title, so far as the record discloses, and there is no question between the parties as to his right to convey. The proof shows that he, by deed, conveyed the fee in the lots to Lanier. Lanier conveys it, first, by deed of mortgage, with the power of sale, to Neil, his creditor, and then, while this mortgage was outstanding and unsatisfied, he conveys' the same estate, by deed of bargain and sale, to Farley. The latter then took the estate subject to the prior lien created by the mortgage, which lien took precedence of his title and was paramount to it. After the law day of the mortgage, the estate in the mortgagee became absolute, subject only to Lanier’s equitable right to redeem, before sale under the mortgage. It does not appear that there was any redemption, either by Lanier, or Farley, the purchaser under him. The mortgagee sold under his mortgage, and Smith became the purchaser at that sale.
At this point, the title again becomes entire in one person; for it is well settled, that a sale under mortgage, after the law day has passed, made in pursuance to the terms of the deed,
' Smith, then, took the fee in the promises at his purchase under the sale made by the mortgagee, wholly unincumbered of the right of Lanier, or Earley as the purchaser from him, to redeem under the mortgage. This being the case, the deed from Smith to Mrs. Earley (now Mrs. Waldrum), conveyed the fee to her. ' It is true, this deed is in the nature of a quitclaim deed to a certain extent, but it may be better styled a deed of bargain and sale,’ without covenants of warranty, except as against the grantor and those claiming under him. It conveys, by its express terms, all right, title, interest and claim which the grantor has in and to the premises, to Mrs. Earley, the grantee, which, as we have seen, was the fee in the land.
With this title, thus vested in her, she intermarries with Waldrum, who went into possession of the premises, and who, by virtue of his marriage, took, at the least, an estate for her life, which is a legal freehold estate, and is clearly the subject of levy and sale under execution issued on a judgment at law against him. — Carleton & Co. v. Banks, 7 Ala. 32; Neil v. Johnson, 11 Ala. 615. The estate which Earley took under the deed from Lanier, although apparently an absolute fee, was subject to be divested, by a sale of the lands under the prior mortgage to Neil. When this sale was made, and another became the purchaser, that other was invested with the absolute fee, and all title was divested out of Earley, or those claiming through him. Mrs. Waldrum, his widow, could not charge the title in his hands with any claim of dower, since it had its origin in a conveyance which existed before her husband had any claim whatever, which hovered over the title in his hands while he lived, and divested it out of those claiming under him, by the sale made after his death. Fry v. Merchants’ Ins. Co., 15 Ala. 810.
This view is conclusive against the relief sought by the cross bill,-which should have been dismissed by the chancellor, and his failure to do so is error.
On the casé made by the original bill, answers and proof, the contract of sale appears to .be, that Mrs. Waldrum was to
As to the time when the purchase money was to be paid, there is no difference between the alternative charge in the bill, and the statements of the answer of Waldrum and wife. They both agree that it was to be paid as soon as the money could be made by the defendants from keeping tavern on the premises. This time has long since passed, according to the bill; but this is denied in the answers, which assert that nothing has been made by them. The proof shows, however, that the defendants must have received from monthly boarders alone, in the years 1850 and ’51, more than a thousand dollars. How much was received from other sources, .during these and other years, does not appear ; but we deem it fair to presume that a sum greatly more than was necessary to pay the complainant's demand has been received by the defendants, Waldrum and wife, since the sale to them set out in the bill.
Under these circumstances, it was error to dismiss the com
As, however, this was not done by the court below, the cross bill must be dismissed at the costs of Waldrum and wife ; and the decree of the court below on the original bill reversed, and the cause remanded, at the costs also of Wal-drum and wife.