131 Ala. 304 | Ala. | 1901
It is familiar, that a mortgagor does not hold adversely, but in subordination to the title of the mortgagee, and an alienee of the mortgagor holds in the same right, and can assert no higher or independent title — The State v. Conner, 69 Ala. 212. The plaintiff contends, under this principle, that the defendant must be regarded as holding under his vendor, A. J. Garren, — the mortgagor of the Louisville & Nashville R. R. Co., — and in subordination to the mortgage by him to said company; that the possession of the land by defendant, claiming title through that company, was the possession of said Railroad Company, and such status continued, until, actual notice of his adverse claim was given by him to some of the vendees of said company claiming title through it. In other words, it is urged, that, as it was not shown that the Louisville & Nashville Railroad Co., — the mortgagee of defendants’ vendor, — or the Alabama Land Company, — the immediate vendee of said Railroad Company, — or the plain
As appears, the evidence, as to the validity of defendant’s adverse possession, was directly in conflict with the plaintiff’s evidence, leaving no place for the general charge given for the plaintiff. The question, under proper instructions from the court, should have been left to the determination of the jury.
Reversed and remanded.