43 So. 368 | Ala. | 1907
The present bill is one against the heirs at law of E. C. Ashford, deceased, and for the purpose of foreclosing a mortgage given by said E. C. Ash-ford during his lifetime to secure the payment of his promissory note for borrowed money. The note and mortgage were made payable to W. O. Sherrod and others, naming them, as school trustees of township 4, range 8 W., from whom the loan of money was obtained. The bill is exhibited in the name of B. T. Etheredge, L. T. Key, and W. C. Bracken, as school trustees of township 4, range 8, Lawrence county, Ala. Under the act approved March 2, 1901 (Acts 1900-01, p. 2070), the complainants became the successors of W. C. Sherrod and others, to whom the note and mortgage were made payable, and the bill, under the act, is properly exhibited in their names as school trustees of township 4, range 8, etc.
The mortgage sought to be foreclosed was given on an undivided interest in certain described lands, “not less than one-fourth” interest, and, with the note which it was given to secure, bore date of March 5, 1880. The facts show that the loan was made and obtained as averred in the bill, and that the interest was paid annually and credited on the note down to and including the year 1896. These interest payments relieved both the note and mortgage from the operation of the statute of limitations, and saved the note from the bar of the statute of 6 years, as also the mortgage given to secure it from the bar as by prescription of 20 years set up as a defense to its enforcement. — Cameron v. Cameron, 95 Ala. 344, 10 South. 506; Code 1896, § 2811, and cases cited; 13 Am. & Eng. Ency. of Law (1st Ed.) 750, 751. There is evidence that tended to' prove that the mortgage, when executed and recorded, was neither attested nor acknowledged; but in this case that question is an unimportant one. It was the intention of the parties, as the facts show in the giving of the mortgage, that a lien on the land described should thereby be created to secure the payment of the borrowed money. In such cases, although the instrument may fail as a mortgage in the conveyance of the legal title, still a court of equity will always give effect to such an instrument as an equitable
It is insisted that the mortgage is void, as to the part of the lands embraced in it known as the “home place,” on the ground, as alleged, which is set up by way of defense in the answer, that this part of the land was held adversely by Mrs. Carrie Ashford, the wife of A. E. Ash-ford, at the time of the execution of the mortgage by E. C. Ashford. The facts show that the title to all of the lands in question, upon the death of the aucestor, Thomas Ashford, in the year 1862, descended to his four children, A. E. Ashford, T. T. Ashford, E. C. Ashford, and Mrs. Bridenthall. The title, of course, was in these four children, heirs at law of Thomas Ashford, deceased, as tenants in common. Upon the death of the ancestor, A. E. Ashford administered upon his estate, and during said administration he was in possession of the lands. In the year 1867 the said A. E. Ashford and his brother, E. C. Ashford, made a private parol agreement to divide the lands between themselves, the said A. E. Ashford taking the part known as the “home place,” and E. C. Ashford the part known as the “free and easy place,” and each one taking possession of the part so alotted; and all of this was without the assent or agreement of the other heirs, who were tenants in common with A. E. and E. C. Ashford. In 1874 the undivided one-fourth interest of A. E. Ashford was levied on under execution and sold at sheriff’s sale; E. C. Ashford becoming the purchaser at said sale for a nominal sum. In 1875 it is claimed that E. C. Ashford sold the interest of A. E. Ashford that he purchased at sheriff’s sale to Carrie Ashford, the wife of A. E. Ashford. No record, however, of any such conveyance, was ever made. A. E. Ashford and his wife, Carrie Ashford, continued in the possession of the part of said lands known as the “home place” from the time of the division by A. E. Ashford and E. C. Ashford of the lands to the death of Carrie Ashford,, and after her death the said A. E. Ashford continued in the possession. During all the while A. E.
It must be borne in mind, however, that it is only the undivided one-fourth interest of E. C. Ashford as to which the mortgage is sought to be foreclosed. Unless the adverse possession set up is such as might ripen into title by lapse of time, it is not such as would render the execution of the mortgage void. To constitute adverse possession, it must be open, notorious, under claim of title, and-must be exclusive; that is to say, it must be adverse to the whole world. The possession of one tenant in common under the law is the possession of all the tenants, and adverse possession-by one tenant in common can never arise until there is an actual ouster of the co-tenant. The private parol agreement of. division between E. C. Ashford and A. E. Ashford did not and could not pass a title to the land. A. E. Ashford was at the time in possession of the place known as the “home place,” and this act of division and his continued possession of the land did not constitute adverse possession by him as against his covenants. The legal title, therefore, remained as it was before. As we said above, there was no notice or record evidence of any sale of the land by E. C. Ashford to Carrie Ashford. There -was never such change from the- possession of A. E. Ashford to- his wife, Carrie Ashford, as would give notice to the world of any claim set up by Carrie Ashford. The facts show that E. C. Ashford, when he borrowed the money in 1880 from the school trustees, represented to said trustees that he, the said E. C. Ashford, held and owned an unincumbered title to an undivided fourth interest in said lands. The facts further show that the said trustees had no knowledge or notice of any claim whatever to said lands by the said Carrie Ashford. Under the facts we feel constrained to hold that the possession of A. E. Ashford was never adverse to his tenants in common; that is to say, that his possession lacked the constituent
The respondents set up the defense of ultra vires to enforcement of the contract. The township commissioners who made the loan were incorporated and chartered as such commissioners, under an act of the Legislature approved January 12, 1826, a copy of which said act is made an exhibit to the answer of A. E. Ashford. By this act the school commissioners were authorized to invest the school funds in certain bank stock, but were not authorized to loan the school money as was clone in the present instance. The action of the school commissioners in making the loan, as was done here, was undoubtedly in excess of their powers and authority; but the answer to this defense is that the lack of authority and power on.the part of the school commissioners to make the loan was remedied and cured by an act of the Legislature of March 2nd, 1901 (Acts 1900-01, p. 2070), by which the contract of loan was ratified. It cannot be disputed that the Legislature had the power in the first instance to authorize the loan just as it was made. The law is well settled in this state that it is within legislative competency by an act to ratify the doing of that which has already been done, the doing of which it had the power to authorize in the first instance, where no contract rights or vested rights are in any way violated or impaired. — Ex parte Buckley, 53 Ala. 54; Lovejoy v. Beason, 121 Ala. 605, 25 South. 599.
It is insisted by respondents in argument that the act of 1901 is unconstitutional on two grounds. The first is that it violates section 56, art. 4, of the Constitution of 1875. That section reads as follows: “There can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement, and the General Assembly shall have no power to revive any right or remedy which may have been barred
The second objection is that it is violative of section 2, art. 4, of the Constitution of 1875, which is as follows: “The style of laws in this state shall be, £Be it enacted by the General Assembly of Alabama.’ Each lav/ shall contain but one subject, which shall be clearly expressed in the title, except general appropriation bills and general revenue bills, and bills adopting a Code, digest, or revision of statutes, and no law shall be revised, amended, or the provisions thereof extended on confirmed by reference to its title only, but so much thereof as is revived, amended, or extended or confirmed shall be reenacted and published at length.” The act in question is independent and original in form, and is intelligible without reference to the original act incorporating the school commissioners of township' 4, range 8 W., Lawrence county, Ala., and there was no necessity of setting out the original act or any part thereof. — State ex rel. v. Rogers, 107 Ala. 444, 19 South. 909, 32 L. R. A. 520; Birmingham Union Ry. Co. v. Elyton Land Co., 114 Ala. 70, 21 South. 314. The title of the act of March 2, 1901, contains in reality but one subject, and in this respect in no way offends constitutional provision. There is nothing in the body of the act which is not cognate or referable to the subject contained in the title. — City Council of Montgomery v. National Building & Loan Association, 108 Ala. 336, 18 South. 816; State ex rel. v. Rogers, supra; Burton v. State, 107 Ala. 108, 18 South. 284; Ry. Co. v. Pike County, 97 Ala. 105, 11 South. 732; State ex rel. v. McCary, 128 Ala. 139, 30 South. 641.
The act of March 2, 1901, contains the following provision :
*87 “Sec. 3. That the rights and interests of said school commissioners in all existing contracts and in every species of property of said township are hereby vested in said trustees.
“Sec. 4. That said trustees may exercise the power of sale contained in any and all mortgages or other security held by said school commissioners or vested in them, and may enforce any and all contracts heretofore made by them, any suit or proceeding now pending in the name of said school commissioners may be revived and conducted to final determination in the name of the trustees of said township 4, range 8, Lawrence county, Alabama.”
These provisions are sufficiently broad and comprehensive to include the mortgage here sought to be enforced. The language employed in the act, “and may enforce any and all contracts heretofore made by them,” receiving that liberal construction which should he applied to such acts, may include' not only such contracts as are valid in themselves, hut such as may be rendered valid by legislative ratification, and hence sufficient to show an intention on the part of the Legislature in the passage of the act to ratify the contract in question.
From the views above expressed, it follows that the decree appealed from will he affirmed.
Affirmed.
