Hawkins v. Hudson, 45 Ala. 482

Hawkins v. Hudson

45 Ala. 482 | Ala. | 1871

PETERS, J.

This is an action of ejectment, and the validity of the proceedings in the court below depends upon the accuracy or the inaccuracy of the charges of the court on the trial before the jury.

*493There were five charges given by the court mero motu, the last four of which were excepted to. But the first was not excepted to. The defendant below also asked one charge, which was refused, and the defendant excepted. And thereupon the court gave a charge in lieu of the charge thus asked and refused, which charge was also excepted to. None of the charges given or refused appear to have been moved for in writing.

The charge of the court must all be taken together. The mere fact that the charge is delivered to the jury in several paragraphs consecutively numbered, does not destroy its unity. If a charge so given is applicable to the whole testimony, and is not an improper annunciation of the law, taken as a whole, it cannot be said to be abstract and erroneous for that reason, or to ignore the proof.

Here, it is insisted that the paragraph of the charge numbered ttoo is erroneous, because it ignores the evidence of a sale under the mortgage. But this evidence was disposed of in the paragraph of the charge numbered one; and that paragraph was in favor of the defendant below, who, as appellant, can not complain of it here, because it did not injure him, and it was not excepted to on the trial. A like objection is urged against said paragraph number two of the entire charge, because it ignores the evidence of the parol gift by Mrs. Jones of the lands in controversy to her son Richard. But this seeming defect is supplied by the paragraph of the charge numbered five. This paragraph is devoted to this part of the evidence, and its effect is not omitted to be brought to the notice of the jury. The same may be said of the other objections of this character. But it will be seen on reference to the record that all are ill taken. The charge, taken as a whole, is based upon the testimony taken as a whole, and there is not any failure in some part of the charge to bring the whole testimony to the notice of the jury. Such a charge cannot be said to ignore the evidence, and to be erroneous for this reason or because it is abstract.

There was evidence tending to show a sale of the mortgaged premises, under a power given in the mortgage deed for that purpose. This sale was made, as the mortgage *494required, after the law day had passed, and the mortgage became the purchaser at such sale. The plaintiff, Hudson the mortgagee, was then vested with title by this sale sufficient to support this action when the suit was brought. A purchase by a mortgagee at his own sale is not void, but only voidable. It is good until it is set aside. — Robinson v. Cullom & Co., 41 Ala. 693, 700, and authorities there cited. But if that sale was void, or had been set aside ' yet the mortgagee, after the law day, might sue to recover the land mortgaged, in ejectment, or by the statutory action in this State which is in lieu of ejectment. — Paulling v. Barron, Meade & Co., 32 Ala. 9, 11; Baker v. Bell, 37 Ala. 354; 4 Kent, 155, 156, 193, 194. The paragraph of the charge numbered two is in conformity .with the law thus settled. It is therefore correct.

The paragraph of the charge numbered three is not erroneous. A deed is not fraudulent and void because it was not read over to the parties making it, before .it was signed. If a party sign a deed without knowing its contents, or seeking to know, it is not fraudulent, unless the signature has been procured by some deceit. Nothing of that kind is pretended in this case. Then this portion of the charge was correct. One can not be relieved from his own want of vigilance, where there is no deception practiced upon him.

The failure to name the county in which the lands conveyed were situated, did not render the deed void. This was but a latent ambiguity, and may be supplied by parol proof. — 1 Greenlf. Ev. §§ 297, 301; 2 Phill. Ev. H. and 0. Notes, p. 761, and cases there cited. The fourth paragraph of the charge does not go beyond this, and it is not objectionable as a proper statement of the law, under the facts of this case.

The law as laid down in the fifth paragraph of the charge is free from error. And there was some proof tending to show facts upon which it might be properly based.

The charge asked by the defendant below was properly refused. The tenancy of Richard Jones was simply an occupancy under permission of his mother and Mrs. De*495jar nett e, each of whom had title to the lands in controversy. It was not such a possession as made his tenancy adverse to his mother and Mrs. Dejarnette, or such as would amount to notice to Hudson, as their mortgagee, of his superior claim. He had no title at law or in equity that he could - enforce against them, much less against Hudson, who was a bona fide mortgagee for valuable consideration, without notice. — Kirksey v. Kirksey, 8 Ala. 131; Forward et al. v. Armstead, 12 Ala. 124 ; Sterry v. Arden, 1 John. ch. 261. He did not pretend to hold adversely to Mrs. Dejarnette, in whom there was a life estate after the conveyance to her daughter, Mrs. Jones. And the estate of Mrs. Jones herself depended on a condition. The charge asked ignores these facts, which appear from the deed of Mrs. Dejarnette to Mrs. Jones, and also the fact that the lands were treated by Richard Jones himself as the lands of Mrs. Dejarnette in paying taxes on the same as her lands. To give an adverse possession the validity to oust the owner and amount to a disseizen, it must be asserted under “a bona fide claim to the property in so veritable, notorious and distinct a manner ” as to charge the purchaser with notice. — Herbert v. Hanrick, 16 Ala. 581, 569. It is said that “ where one enters not under any deed or written title, but merely assuming the possession with claim of right, the ouster he effects extends no further than he occupies, cultivates, encloses, or otherwise excludes the owner from.” That was the case here. The entry, if any, was without color of title. It did not then go beyond the actual enclosure. — 2 Smith’s Lead. Cases ; Hare and Wal. Notes, p. 560, et seq. The charge asked went much beyond this. It was, therefore, properly refused.

The charge given by the court after the refusal of the charge asked by the defendant, was only too favorable to the defendant. It was based upon the assumption that the possession of Richard Jones was bona fide, and adverse to the possession of both Mrs. Dejarnette and his mother. This was more favorable than a strict construction of the evidence would justify. It admits of grave question whether the claim of Richard Jones to the lands in controversy was bona fide, and if there was any proof at all, it *496was extremely weak, that his possession was hostile, visible, notorious, and distinct from that of his mother, and grand-mother, Mrs. Dejarnette. Yet these facts were necessary to be shown.

I therefore think that the action of the court below was free from error, and that its judgment was right. Consequently it is affirmed.