96 Ala. 137 | Ala. | 1892
-The facts of the case are as follows: In September, 1888, Matilda Campbell being the owner of an undivided one-sixth interest in certain real estate executed a mortgage to Joseph Espalla, Jr. This mortgage was not
On tbe 12th of July, 1889, tbe tenants in common filed a petition in tbe Probate Court praying tbat tbe lands be sold for partition, and a decree was rendered in tbat court on tbe 13th of August, 1889, for tbe sale of tbe land. No others than tbe tenants in common were parties in tbe Probate Court for a partition. On tbe 17th of August, 1889, Matilda Campbell made a general assignment to one Baker of all her property for tbe benefit of her creditors generally. On tbe 11th. of November, 1889, tbe lands were sold under tbe decree of tbe Probate Court on partition, and Louis Touart, tbe complainant, became tbe purchaser. Tbe purchase money having been paid, tbe sale was confirmed and titles made to Touart. On tbe 13th of September, 1889, Lienkauff & Strauss filed their bill in tbe Chancery Court of Mobile, for tbe enforcement of their mortgage, and after tbe purchase money for tbe lands sold under tbe decree of tbe Probate Court was paid over by tbe purchaser and tbe sale confirmed, they amended their bill by ¡rraying tbat their lien be enforced upon so much of tbe purchase money as was realized from the share of Matilda Campbell. Matilda Campbell and Baker, tbe assignee, were made parties defendant to tbe foreclosure bill of Lienkauff & Strauss, and at tbe close of tbe bill it was averred, “tbat Joseph Espalla, Jr., claims to have some lien or mortgage on tbe property, prior to tbat of tbe complainant, and that it is necessary tbat be should be made a party for tbe purpose of propounding bis claim.” Louis Touart was not a party to the foreclosure suit by Lienkauff & Strauss. Joseph Espalla, Jr., answered tbe bill of Lien-kauff & Strauss, setting up a prior mortgage and attached bis mortgage as an exhibit to bis bill. Upon tbe coming in
Upon the final disposition of that case against him, Joseph Espalla, Jr., proceeded to advertise the property for sale, under a power of sale contained in his mortgage. To enjoin the foreclosure sale by Espalla and to remove the cloud upon his title created by the mortgage of Espalla, Louis Touart, the purchaser at the sale for partition made under the decree of the Probate Court, filed the present bill, setting up the facts substantially as we have stated them. The Chancery Court granted him relief, and from that decree the present appeal is taken.
A recurrence to the facts will show that the mortgage of Espalla was recorded on the 24th of August, 1889, and Touart became the purchaser in November, 1889. He was, therefore, chargeable with legal notice of the existence of the Espalla mortgage at the time of his purchase and payment of the purchase money. The rule is that “the right of an incumbrancer can not be affected by a sale of lands in partition. If the lands are sold the purchaser will take the premises cum onere, subject to the lien upon the undivided share.” — Knapp on the Law of Partition, p. 266; Ereeman on Cotenancy, § 479; 1 Jones on Mortgages, § 475. Code, § 3247, makes provision that, if the lands are partitioned, the “lien on an undivided interest is thenceforth a charge only on the share assigned to such party.” There is no statutory provision to the effect that when the lands are sold for distribution such lien shall be a charge upon the proceeds of the share or interest of the incumbrancer.
We do not think it necessary to determine whether the
If tbe Chancery Court, in tbe contest for tbe purchase money, bad decided that the Espalla mortgage was superior to that of Lienkauff & Strauss, and decreed tbe purchase money to him, there could be no plausable pretext for bis resorting to a sale of tbe same land a second time under tbe power contained in bis mortgage. Tbe legal effect of tbe ratification is tbe same whether be was successful or unsuccessful in that contest.
We find no error in tbe record, and tbe case is affirmed.
Affirmed.