65 Ala. 336 | Ala. | 1880
— There are several points raised by the assignments of error, the more material of which respect the delivery of the mortgage sought to be foreclosed, and, if there was delivery, the operation of the statute of limitations on the right of foreclosure. These do not depend upon any controverted questions of fact, and are to be decided without reference to any of the evidence which was the subject of exception, either because of the ineompetency of the witnesses, or upon any other ground ; and if these points are resolved in favor of the appellee, it is unnecessary to pass upon any other questions.
Delivery is an incident essential to the execution of a mortgage, or other conveyance of real estate. Without it, there is no mortgage ; and, generally, it is only from the delivery that it takes effect, and becomes an irrevocable conveyance, and a valid, operative security. No formality, no particular words, no certain acts, are essential to a valid delivery of a deed. The fact rests in intention, and is to be collected from all the acts and declarations of the parties, having relation to it. It may be actual, by a transfer of the conveyance, signed and attested, or acknowledged, from the manual possession of the mortgagor, to the manual possession of the mortgagee, though not a word is spoken ; or, it may be by saying something, and doing nothing; as, when the mortgage, signed and attested, or acknowledged, is lying on a table, and the mortgagor should say, “ There is your mortgage, ” or, “ There is your deed, ” or, “ That paper is sufficient for you; ” or any other words, clearly signifying the mortgagor’s intention to part with dominion over it, and to pass it to the mortgagee. Whenever there is a clear
The mortgage, on its face, purports to be signed, sealed ,and delivered, and on the day of its date was acknowledged before, and certified by the probate judge, by whom it was duly recorded. It never again passed into the possession of the mortgagor. There are no burdens imposed on the mortgagee — no extension of ' the day of payment of the mortgage debt. Benefit only could accrue to him from its acceptance. The fair and reasonable presumption is, that. when the mortgagor signed and sealed the mortgage, acknowledged its execution, and delivered it to the judge of probate, for registration, he intended to part with dominion over, it, and to transfer dominion to the mortgagee, so that to him it would enure, and operate as a muniment of title, and a valid security for the debt, It is instruments perfected and consummated by signing, sealing, and delivering, which are authorized to be recorded, and not imperfect, revocable instruments. If the mortgage imposed burdens or duties on the mortgagee — if it stipulated for forbearance of the mortgage debt, or the suspension of any existing right of the mortgagee — there might be some room for insisting upon some other evidence of acceptance by the mortgagee than is disclosed. But, when benefit only can accrue, acceptance ought to be presumed, until there is evidence of actual dissent.
The case is much stronger than that of Garnons v. Knight, 5 Barn. & Cress. 671, in which a mortgage was duly signed and sealed, in the absence, and without the knowledge of the mortgagee, the mortgagor saying, “I deliver this as my act
2. The mortgage being duly recorded, the registration operated as notice to subsequent purchasers, or mortgagees ; and they could avail themselves of the statute of limitations as a bar to a foreclosure, only under the same circumstances, which would be available to the mortgagor. There is no room, under the facts shown, upon which the subsequent mortgagee can invoke the benefit of the statute of limitations. If the mortgagor had remained in possession, not disclaiming the title of the mortgagee — not asserting a possession inconsistent with, and hostile to that title, so openly and notoriously that knowledge of it would be imputed to the mortgagee — it could not be insisted that the possession was not subordinate to the mortgage, and that the mere delay of the mortgagee to enter, or to foreclose, would afford room for the operation of the statute. The statute operates on adverse, hostile possessions ; not on permissive possessions, in subordination to the title of the true owner. The subsequent mortgagee, purchasing with the notice which registration affords, acquired only the equity of redemption — the right and estate the mortgagor could lawfully alien and convey. To the possession he was entitled, until the senior mortgagee entered, or foreclosed. The possession was not inconsistent with, or hostile to the title of the senior mortgagee. It was in subordination to it, until there was an open, notorious disclaimer of it, and the assertion of an inconsistent hostile possession. — Boyd v. Beck, 29 Ala. 703.
These conclusions compel an affirmance of the decree of the chancellor, without considering the assignments of error.
