58 Ala. 147 | Ala. | 1877
Unless the bill is intended as a' bill for foreclosure of the several mortgages, of which the complainant claims to be the equitable owner, it is without equity. As to the appellee, the complainant, is, at law seized in fee of the legal estate, and has a full and complete defense to the action of ejectment. The conveyance to Eliza Mellgrew, the source of the title of the appellee, was subject and subordinate to the prior mortgage, the grantor had executed to Nicholas Thompson. The conveyance created by its terms in Mrs. Mellgrew an equitable, not a statutory separate estate. This estate she could mortgage, or alien on any valuable consideration, in the mode prescribed by the statutes, as if she were a feme sole. — Short v. Battle, 52 Ala. 456. The subsequent mortgages executed by her and her husband, were valid and operative, at law, conveying the premises to the several mortgagees, on condition, of which, in a court of law, the estate was freed, when broken by the default of the mortgagors. In a court of equity, there remained in the mortgagors, an equity of redemption — the right to revest themselves with the estate, on the payment of the mortgage debt. This equity descended to the appellee. As to all others, than the mortgagees, and their privies, the mortgagor, or his privies in estate may be regarded as the owners of the fee — strangers
Whatever maybe said in reference to the other mortgages, and the relation of the appellee to them, it is certain he is the assignee of the mortgage to Minge, and that the assignment passed not only the mortgage debt, and would in equity operate as an assignment of the mortgage, but being by deed, with proper words of conveyance, passed the legal title, and is a conveyance of the land itself.— Graham v. Newman, 21 Ala. 497. The assignee, Briggs, by deed conveyed to Spence, with covenants of warranty, and he haying in like manner conveyed to the appellant, the legal estate became vested in the appellant, and must prevail at law over the equity of the appellee. No question of the priority of the several mortgages can arise between the parties to this controversy. The mortgages are all operative against the appellee, and as between him and the several mortgagees, each is at law a conveyance of the legal title.
Though a mortgagee or his assignee is in possession, and is clothed at law with the legal estate, he may come into equity for a foreclosure. . The quieting of the title, the prevention of future litigation, is a substantial ground for the interference of equity. But when he comes, he must offer to do equity — to account for rents and profits, which it is the right of the mortgagor to have applied to the payment of the mortgage debt. The present bill is wanting in such offer, and the defect was one of the grounds of demurrer.
A transfer of the mortgage debt, whether by -writing or by parol, is in equity the assignment of the mortgage. — Duval v. McLoskey, 1 Ala. 208. If the assignment is not in writing, but by parol, the legal title to the debt, and the legal title in the premises remaining in the assignor or mortgagee, the assignee seeking a foreclosure, must make the assignor a party, that the legal title and estate may be bound by the decree. — Prout v. Hoge, present term.
The present bill is defective for want of parties, the mortgagees, Thompson and Welch, to whose mortgages we think the complainant is in equity entitled to be subrogated, not being made parties. The general rule may be, as stated by the Chancellor, that no man can make another his debtor without his consent. And if one without request, pays money in satisfaction of the debt of another, it can not be recovered. The law, however, is not so unconscionable, as to permit the debtor to avail himself of the payment, and yot
Tbe decree of tbe Chancellor must be affirmed.
