57 Ala. 108 | Ala. | 1876
We have several decisions affirming the principle that a mortgagor, or his vendee with notice of' the mortgage, hold in subordination, and not adversely to-the mortgagee, and the possession of neither one, or the other, if unaccompanied by an open disclaimer of the title of the ■ mortgagee, brought home to his knowledge, will affect the validity of an alienation made by him; nor will it fall within the operation of the statute of limitations.—Foster v. Goree, 5 Ala. 424; Herbert v. Hanrick, 16 Ala. 581; Boyd v. Beck, 29 Ala. 703; Byrd v. McDaniel, 33 Ala. 18; Relfe v. Relfe, 34 Ala. 500. After thorough examination of the
The mortgagor stands in a different relation. If in possession, his possession is permissive, referrible, and in subordination to the legal title of the mortgagee, until by disclaimer, of which the mortgagee has notice, it becomes adverse. His alienation passes only his equity of redemption, and if the alienee has notice of the mortgage, he enters and holds in subordination to the title of the mortgagee.
The mortgage to the appellant was properly recorded, and it is not necessary, therefore, to examine the evidence which has been offered to show actual notice to those entering subsequently into possession of the premises under the mortgagor. The registration is equivalent to actual notice, and the purpose of the statutes which authorize it, is to make it operate as direct notice to all persons deriving title from the mortgagor. Having notice, they are bound by the mortgage ; and the evidence fails to show any disclaimer by them of the title of the mortgage.
It is supposed the statute which renders the statute of limitations applicable to suits in chancery (R. C. § 3381) has changed the principle, and that now a bill for fóre■closure is barred, if an action of ejectment would be barred
The only principle available to the mortgagor, is the presumption of payment of the mortgage debt, after the lapse ■ of twenty years.—Relfe v. Relfe, supra. That period had not elapsed when this bill was filed, and (independent of the evidence of a partial payment within seventeen years), the presumption could not arise.
The appellant was entitled to a foreclosure, and the chancellor erred in not so decreeing. The decree must be reversed, and a decree here rendered declaring the complainant entitled to relief, and declaring the mortgage to him foreclosed, ordering an account of the amount of the mortgage debt, computing interest to the day of reporting such amount, and remanding the cause.