106 Ala. 389 | Ala. | 1894
— The material question, decisive of the substantial right of the parties, is, whether the appellee acquired the legal estate in the lands in controversy, by his purchase at the sale made by Hinton, and the conveyance from Hinton purporting to pass it. If he acquired an equity only, the present action can not be supported. Ejectment, or the corresponding statutory real action, can be maintained only upon a legal title, entitling the plaintiff to immediate possession. The nature, character and extent of the estate or interest the appellee acquired, depends upon the construction of the deed by which Blanton conveyed the lands to Mrs. Lang. The deed is not an ordinary technical mortgage or deed of trust, for these grant and convey the legal estate to the mortgagee, or trustee, and the trusts or conditions which may be attached are appurtenances or appendages to the legal estate. But mortgages or deeds of trust proper are not the only forms or kinds of security, for the payment of debts or performance of duties. These are various, matters of contract or convention, and generally, there is no difficulty in a court of equity in establishing a lien or trust on real or personal property, whenever that is the matter of agreement, as against the party himself, and third persons, who are volunteers, or
The grantor, Blanton, had become liable for the debt of the husband of Mrs. Lang, created by his default ns administrator of Alberta Lang, deceased. The payment of the debt formed the consideration of the conveyance, and a trust for its payment was declared. If these were all the terms of conveyance, it would bear a close resemblance to a conveyance by a vendor reserving or declaring a trust or lien for the payment of the purchase money, and the trust or lien would be capable of enforcement only by a decree of a court of equity. But by the conveyance it is expressly covenanted that the trust may be enforced by a sale under the conveyance as in cases of foreclosing mortgages under the statute, or by bill in chancery to foreclose. There is no statute regulating the foreclosure of mortgages by sale, but it is manifest the parties had in contemplation a sale, anda sale under the conveyance, and these words indicate that it was a public, not a private sale, which was contemplated; and from them, it is a just and reasonable inference, that it was a public sale, conducted as public sales under judicial process, or the decree of courts, regulated by the statutes, with which they were familiar, to which they referred. The words cannot be i ejected as useless
The conveyance from Hinton to the appellee, recites his appointment by parties standing in the relation of next of kin of Alberta Lang, or the legal representatives of such parties, refers to the appointment, as of record in the court of probate', the default in the payment of the debt secured, the sale of the lands which was advertised and conducted, as sales under judicial process are required to be advertised and conducted by sheriffs, and that the appellee became the purchaser, and had paid the purchase money. These recitals must be accepted as true prima facie, and of them there does not seem to have been controversy or dispute on the trial in the court below. The conveyance passed the legal estate in the lands to the appellee, and the court below properly instructed the jury, that if they believed the evidence, he was entitled to recover.
Affirmed.