42 So. 441 | Ala. | 1906
— Statutory action in the nature of ejectment. Affirmative charge given for defendants. Plaintiffs appeal.
It seems to be conceded that the turning point on the trial was the exclusion of an unpaid mortgage, a link in plaintiffs’ chain of title, on which was indorsed the following credit : “Rec’d on within note & mortgage f1,000.00 (one thousand dollars) September 19, 1898, for lot” — which date ivas several years after the law day of the mortgage, and after default in the payment thereof. Of even date with the credit quoted the mortgagor executed and delivered to the mortgagee a deed to the premises mentioned in the credit. It has been repeatedly-adjudged by this court that a mortgage of land possesses a dual character, “bearing one in a court of law and another in a court of equity.” It is also settled in this state that in a court of law, after the law day of the mortgage and default in the performance of the condition as stipulated in the instrument, the estate in fee in the realty, there being no contractual conditions inhibiting it, vests absolutely in the mortgagee, leaving
There is no merit in the other assignments of error. For the error stated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.