75 So. 158 | Ala. | 1917
Eliminating from consideration those matters which are not material, the only issue in this case — the issue which must control the result — is whether or not the complainant, Mrs. Christopher, had knowledge or notice of the fact that the respondent, Wise, was claiming to own the mortgaged land in his own right and in hostility to her mortgage, during the period of his alleged adverse possession. If she had such knowledge, or its legal equivalent, then Wise’s possession was adverse as to her, and ripened into a title paramount. If she had not such knowledge, or its legal equivalent, then Wise’s possession, however long con
What is necessary to constitute an effective adverse possession by a mortgagor or his alienee, as against the mortgagee, has been often declared by this court. Prima facie, a mortgagor or his alienee holds in subordination to the title of the mortgagee, and not adversely thereto. “Until foreclosure, the mortgagor owns the equity of redemption. This he may alien or transfer to another. It cannot be known, without some overt act, throwing off allegiance, that the mortgagor or his vendee is not quietly enjoying the possession of the equity of redemption, at all times acknowledging the rights of the mortgagee.”—Boyd v. Beck, 29 Ala. 703, 714; Byrd v. McDaniel, 33 Ala. 18; Coyle v. Wilkins, 57 Ala. 108.
In harmony with previous decisions, this court said in State v. Conner, 69 Ala. 212, per Stone, J.: “When a mortgagor, after the execution of the mortgage, makes sale of the mortgaged premises to a third person, who has notice, actual or constructive, of the prior mortgage, the presumption is that he sells only the interest remaining in him, which is an equity of redemption. And, as the mortgagor does not hold adversely, but in subordination to the title of the mortgagee, the presumption is that the alienee * * * holds in the same right, and asserts no higher, or independent title. So, if such transaction be left to its own legal intendments, the presumption is that the alienee, like his vendor, holds in recognition of, and subordination to, the prior and paramount title of the mortgagee. This, without more, is not an adverse holding, which will ripen into a title at the end of 10 years of continued occupation. To convert such a possession into an adverse holding, there must be a renunciation or disclaimer of the mortgagee’s right, and that renunciation must be traced to his knowledge. Till that is done, such possession is not regarded as adverse.”
Our conclusion is that the complainant is entitled to the relief prayed, the foreclosure of her mortgage, and that the trial court erred in its decree denying relief and dismissing the bill of complaint.
Let the decree be reversed and the cause remanded, for further proceedings in accordance with this opinion.
Reversed and remanded.