117 Ala. 680 | Ala. | 1897
Moreover, the mortgage had already been foreclosed and the contract fully executed, and if it were true that the transaction originated with a foreign corporation, which had not complied with our laws, it would be too late to set that fact up for relief. — Russell v. Jones, 101 Ala. 261; Long v. Ga. Pac. R. Co., 91 Ala. 319; Craddock v. A. F. L. M. Co., 88 Ala. 282.
It is also an established doctrine in England and in this country, that a valid mortgage. may be made of property not in existence at the date of the mortgage, so as to operate and attach upon it as soon as it comes into existence, and make-it in equity an effective security for the debt provided for in the mortgage. — 15 Am. & Eng. Encyc. of Law, 749, and numerous authorities there cited ; Patapsco Guano Co. v. Ballard, 107 Ala. 710.
, From the foregoing it appears that the 5th, 7th and 10th grounds of demurrer were without merit.
The bill alleges the execution and foreclosure of the mortgage, and the purchase of the property by the complainant. The defendant company claims under an execution sale made after the mortgage had been duly recorded. The bill alleges, that “at, and prior to the tihie when said execution had been levied, the defendant, Electric Lighting Company, knew of the existence of the mortgage or deed of trust, and that the same was recorded.” If this be true, as it must be held on demurrer, the defendant company could not be a bona fide purchaser for value without notice. Besides, in purchasing at execution sale, the defendant took the property subject to the equitable title of the mortgagee, under whose, mortgage the complainant claims. “To such sales the rule of caveat emptor applies in its utmost vigor and strictness ; ’ ’ and the purchaser acquires no other or greater interest in the property than was possessed by the execution debtor at the time of the sale. — Lindsay v. Cooper, 94 Ala. 170, 178 ; Lovelace v. Webb, 62 Ala. 271; Fore v. McKenzie, 58 Ala. 115; Bland v. Bowie, 53 Ala. 162.
The motion to dismiss the bill for want of equity and the demurrer questioning its equity were properly overruled. '
It is unnecssaiy to notice the other grounds of demurrer, to which the. bill, on its averments, was not open.
Affirmed.