33 Ala. 91 | Ala. | 1858
—It is contended for appellant, that the claim of appellee is only that of mortgagee, and that a recovery in ejectment cannot be had on such title, after the payment of the debt to secure which the mortgage was given. As bearing on this legal proposition, we cite the following authorities: 2 Greenlf. Ev. § 330; Burton v. Austin, 4 Ver. 105; Paxon’s Lessee v. Paul, 3 Harris & McH. 399; Peltz v. Clarke, 5 Peters, 491.
We deem it unnecessary to decide the legal question stated above, for the following reasons:
]. The claim of appellee is not that of simple mortgagee. True, he conveyed the lands in controversy to Smith & Eddins, and took from them a cotemporaneous mortgage of the premises. The mortgage, however, contained a power of sale; and under that power, Mr. Robinson subsequently sold the lots to J. W. T. Reid, and gave him a bond to make title when called on. There is no evidence that any conveyance was ever made to Reid, or that title ever afterwards passed out of Robinson by any conveyance. All the subsequent claimants held
2. There is no evidence that the mortgage debt from Smith & Eddins has ever been paid. It is probably true that Robinson sold the premises under the po.wer contained in his mortgage, and that if the terms of that sale have been complied with, Reid, or whoever owns his rights under his purchase, can, in equity, compel a conveyance.—Walker’s American Law, 320. Reid, however, and those claiming under him, stand in the relation of purchaser by executory contract to Robinson, the vendor to Reid.
Neither was there any error in rejecting oral evidence of the sale by Robinson, and purchase by Reid. That fact was proved by the bond; and no evidence of sale, short of a conveyance of the title by Robinson, could defeat the appellee’s superior title.—Hilliard on Vendors, vol. 1, pp. 2, 3; Walker’s American. Law, 319, note.
Section 10 of the Code repealed “all acts of a public nature, designed to operate on all the people of the State,” not embraced in the Code. The act of 1843 was an act of a public nature, and is not embraced in the Code. The only section of the Code which, in its provisions, resembles the act of 1843, is section 2476, subdivision.2. That section, construed in connection with article 2 of that chapter, pp. 457-8-9 of the Code, is essentially different from the provisions of the act of 1843 ; and hence we hold, that the former statute ceased to have any operation, when the Code went into effect, January 17, 1853.
Nor do the limitations provided by the Code apply to this case. This action was brought within a year after the Code went into operation, and is expressly covered by the exception in section 2502 of the Code.
The act of Eeb. 15th, 1854, (Pamph. Acts, 71,) was passed after this action was commenced, and cannot affect the plaintiff’s right to recover.
There is no error in the record, available to the appellant ; and the judgment of the circuit court is affirmed.