66 So. 939 | Ala. Ct. App. | 1914
Our statute (Code, § 4091, subds. 2, 3), in defining what right or interest, less than the absolute title, a -defendant may have in personal property that is the subject of levy and sale under execution, limits it to an “equity of redemption” and to a “right to the possession [of the property] for his own life, the life of another, or any shorter period” other than a mere “right of possession acquired by a bona fide hiring.” — Code, § 4091, subds. 2, 3.
Every defendant has in property which he has mortgaged before the foreclosure of the mortgage, at least an equity of redemption, as this is a right existing independent of the terms of the contract as an incident of all mortgages.- — 11 Am. & Eng. Ency. Law, 306.
This equity of redemption may be levied upon and sold either before or after the law day of the mortgage and at any time before it is foreclosed in equity or under the power of sale contained in the mortgage (McGregor v. Darling & Hall, 3 Stew. & P. 397; Gassenheimer v. Molton, 80 Ala. 526, 2 South. 652), and is the only right or interest that the mortgagor has in personal property which he has mortgaged that can be levied upon and sold under execution, unless the mortgage contains a clause or provision retaining, either ex
Section 4091 of the Code further declares that:
“When any interest less than the absolute title is sold, the purchaser is subrogated to all the rights of the defendant, and subject to all his disabilities.”
Consequently, when the whole or entire interest of a defendant in personal property that he has conveyed by mortgage is levied upon and sold before the law day of the mortgage, the purchaser, if the mortgage contains a clause reserving in the mortgagor the possession as mentioned, acquires, not only defendant’s equity of redemption, but also his right of possession. — Harbison v. Harrell, 19 Ala. 753; Gassenheimer v. Molton, 80 Ala.
When, however, only the mortgagor’s equity of redemption is levied upon and sold (since such is a restrictive, as opposed to a general, levy) the purchaser acquires only such “equity of redemption,” although the levy and sale be made before the law day of the mortgage, and although the mortgage contain a clause or provision retaining in the mortgagor the right to the possession of the property until default made or condition broken in the mortgage. — Gassenheimer v. Motion, 80 Ala. 527, 2 South. 652; Davis v. Shipman, 6 Ala. 32.
In the present case, an execution, issued upon a judgment obtained by the appellant, Horton, against one McAllister, was levied specifically upon the latter’s “equity of redemption” (quoted from the levy) in one mule described in the levy, to which appellee, Hovater, filed affidavit and claim. On the trial of the right of property had on June 24, 1913, it appeared that said claimant, Hovater, had and held a mortgage on the mule duly executed by said defendant (McAllister) and recorded before the levy was made, but which was not due until November 15, 1913 (some five months, as seen, after the trial) ; and it further appeared that under the terms of said mortgage, which was introduced in evidence by the claimant, the mortgagor, McAllister (defendant in execution), was entitled to retain the possession of the property until the law day of the mortgage. The claimant, as seen, under his said mortgage, upon which his claim was predicated, owned neither the de-, fendant’s equity of redemption, which alone was levied upon, nor the right to the present possession of the mule, which right was not levied upon. — Marriott v.
There was accordingly judgment for the plaintiff, but he appeals and complains that the court refused to permit him to prove the reasonable value of the hire or use of mule for the time between the levy and the time of the law day of claimant’s mortgage. What we have already said sufficiently indicates that we are of opinion that the action of the court in this particular was entirely free from error, as the proof of the fact mentioned would have been immaterial to any issue in the case. It had no tendency whatever to prove the value of the equity of redemption, which alone was levied upon, but tended only to prove the value of defendant’s right to the possession of the property until the law day of the mortgage, which right was not levied upon. — Bingham v. Vandegrift, 93 Ala. 285, 9 South. 280; Gassenheimer v. Molton, 80 Ala. 526, 2 South. 652; Heflin v. Phillips, 78 Ala. 180; Harbison v. Harrell, 19 Ala. 753. The value of an, equity of redemption in property is the excess of the value of the property over and above the amount of the incumbrance. — Hamilton & Canterbury v. Phillips Bros., 120 Ala. 181, 24 South. 587, 74 Am. St. Rep. 29.
We have discussed the only point urged in brief, which being determined adversely to appellant, the judgment appealed from is affirmed.
Affirmed.
