65 So. 769 | Ala. | 1914
That Shields and his wife executed and delivered the deed to Fortenberry there can be little doubt; but the evidence is most convincing that it was the understanding and agreement that the said instrument was to operate as a mere security, and not as an absolute conveyance, and we think that the chancery court properly declared the instrument to be a mortgage and not a deed.
The most serious question in this case is whether or not Dr. Gewin, who loaned Fortenberry $500 and took
■ “The property and possession of the grantor passes fully by his conveyance as if seisin had been formally delivered.”
This means that from the instant the deed is delivered the grantor’s possession becomes that of the grantee.
“And if thereafter the grantor remains in possession, he is presumptively but a tenant at the sufferance of the grantee. He will be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such a relation, and a notorious assertion of right in himself, will be sufficient to change
On the other hand, the case of Shiff & Son v. Andress, 147 Ala. 690, a memorandum decision, but which is reported in full in 40 South. 825, holds that the fact that the vendor remained in possession was notice to- a purchaser from the vendee of any equities or claims that he had notwithstanding the execution of the deed. The majority favor following this case, and think that it can be differentiated from the authorities supra, as they deal only with the question of adverse possession between the vendor and vendee, and do not deal with a purchaser from the vendee while the original vendor is in possession. The writer realizes that the said SMff Gase, supra, can be differentiated as to the facts, but thinks that it is opposed to the legal principle declared in the Alabama cases, supra, and thinks that it is unsound and should be overruled.
The decree of the chancery court is affirmed.
Affirmed.