Leech v. Karthaus

141 Ala. 509 | Ala. | 1904

SHARPE, J.

This was a statutory action in the nature of ejectment and was tried without a jury. The defendants pleaded separately not guilty and have here made separate assignments of error. Plaintiffs and the defendant, Sarah Leech, claimed through Joseph Mc-Cracken. To prove this claim, the plaintiffs introduced a deed of May 16, 1891, from McCracken to Martin in trust to secure a debt of the grantor to the Southern Building & Loan Association, containing power to thei trustee to sell the property for payment of the debt after default therein and notice advertised, and containing also a power to the Association to substitute another as the trustee in case of the death, resignation or removal of Martin; ;/n instrument made March 20, 1897, by the Association reciting that Martin had died and purporting to1 substitute Cooper to the trust; a deed of March 23, 1897, from the Association and Cooper as trustee to Pleasants; a deed of March 23, 1897, from Pleasants and his. wife to Nolen in trust to secure a debt owing by Pleasants to the Southern Building & Loan Association, giving power to the trustee to sell for payment of the debt after default therein and notice advertised; a deed of June 30, 1899, from Pleasants and wife to that Association expressed to be in payment of the debt men-tinned in the deed in trust to Nolen; a deed oí July 5, 1899, from the Association to Epperson; a' deed of July 7, 1899, from Epperson and Ms wife to Ernest Karthaus of Avlioni the plaintiffs; are the only heirs. It Avas proved that McCracken gave his written power for the making of the deed from Cooper and the Association to Pleas-ants in consideration of his discharge by the Association from the debt secured by the deed he made in trust to Martin.

The defendant, Sarah Leech, introduced in evidence a mortgage of th,e property to her made by McCracken on August 31, 1893. The other defendants are not shown to have claimed in right of ‘ Sarah Leech or through McCracken, or to have made any admission respecting title. Therefore, to show a right to recover against them plaintiffs Avere under the; necessity of proving, that they, the plaintiffs, had held prior possession of the lot in question, or that McCracken or some one else Avith aaíioiu they AA’ere in privity had held title- or prior possession. — Hines v. Clancey, 47 Ala. 637; Doe v. Clayton, 73 Ala. 359; Payne v. Crawford, 102 Ala. 387 ; Florence B. & L. Association v. Schall, 107 Ala. 531. There Avas no evidence of the title in McCracken, or that any one preceded the defendants in possession, and this of itself shows there Avas error in rendering judgment against the defendants -other than Sarah Leech.

Upon other considerations the judgment was erroneous as to all the defendants. By the first mentioned trust deed such title as may have been in McCracken Avas vested in the trustee Martin, and the poAver of substituting another to- the trust depended on the contingency of Martin’s death, resignation or removal. There Avas no evidence of the happening of either of those contingencies other than in the recital of the instrument made by the Building & Loan Association purporting to substitute Cooper, and those recitals were not binding upon or evidence against the defendants, they being strangers to that instrument. As a general rule recitals of a pri-A'ate Avriting are treated as res inter alios acta, and are evidence only against the parties thereto and their privies. — Wood v. Lake, 62 Ala. 489. We do not say this rule is applicable to recitals made in the execution of a naked power of sale such as were involved in Nougher v. Sparkes, 110 Ala. 572.

In the absence of evidence that the first trusteeship became vacant, the presumption is that the legal title to the property continued in Martin notwithstanding the attempted substitution of Cooper and the subsequent attempts to convey title, and with that presumption prevailing plaintiffs were left without proof of title in themselves. Though Sarah Leech held through Mc-Cracken and as a junior mortgage had no better right than he to question the title he conveyed to Martin, she had a right to require that title be traced by proof to the plaintiffs as a prerequisite to their recovery. Neither that or any right of hers was prejudiced by McCracken’s agreement with Cooper, the Association or Pleastnas made subsequent to the execution of her mortgage. Jones on Mort.. § 730; New England Mort. etc. Co. v. Hirsch, 96 Ala. 232.

If in fact there was a vacancy in the first trusteeship, and a consequent valid substitute of Cooper thereto, it may be that the deed he executed with the Association to Pleasants carried such title as McCracken may have had. Though defective for lack of advertisement, etc., as an execution of the power of sale given in the trust deed of McCracken, Cooper’s deed could yet have been effective to transmit such legal title as he had acquired. Robinson v. Cahalan, 91 Ala. 479; Robinson v. Pierce, 118 Ala. 273. Had the title thus been traced to Pleas-ants, the evidence would have still fallen short of tracing it from Nolen who, as trustee in the deed from Pleas-ants to the Association, succeeded to the former’s title. It is true, as has been suggested in briefs, that a trust ceases when its object has been accomplished, and that where the nature of the trust is such that it alone separates its beneficiary from the full ownership of the property, the cessation of the duties and powers created by the trust wil], by virtue of the statute of uses operate to divest the trustee of title and carry the same to the beneficiary. Authorities on this subject may be found in Robinson v. Pierce, supra; Gossom v. Ladd, 77 Ala. 223; Schaffer v. Lavretta, 57 Ala. 14; Comby v. McMichael, 19 Ala. 747; and Perry on Trusts, §§ 312, 320. The plaintiffs, however, are not helped by this doctrine, for. it has no application to a conveyance in trust to secure a debt. Of such a conveyance the creditor is the cestui que trust, and the payment of his debt leaves him without interest in the property. Nor is the case influenced by § 1067 of the Code of 1896, Which provides that “Payment of a mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage.” A deed in trust to secure a debt, though sometimes called a mortgage, is essentially different from a mortgage as has heretofore been pointed out. Such a deed is not within the terms of that statute and cannot be brought within its provisions without speculation as to legislative intention, which, if it were indulged, it would not make clear that the instrument was not merely to obviate the difficulty of-obtaining a recon-veyance where the positions of the parties are antagonistic, as in the case of a debtor and his creditor holding title to hfs property — a difficulty not likely to exist when the title is in a trustee who presumably has no- interest in the debt and consequently no temptation to withhold a reconveyance in order to coerce the payment of more than is actually due.

The objections made on the trial to the deeds of the Association to Pleasants and Epperson, respectively, were obviated by evidence introduced after the introduction of the deeds, showing that the persons who acted for the Association in their execution, Avere its officers, having authority under its by-laws to act in that regard.

To the acknoAAdedgment of the deed from Epperson to Karthaus there is appended the signature, “W. S. Wells, Jr., N. P.” The letters N-. P. are judicially knoAvn to he in common use as signifying “Notary Public,” and accordingly they are to be given that signification in this use here made of them. — Cyc. of Law & Pro., 572, 573. So interpreted the signature gives official character to the certificate to the extent of showing that the notary took the acknoAAdedgment in his official capacity. This appearing the certificate is not vitiated by the omission from its body of the words “Notary Public” as strict conformance with the Code form would have necessitated. Substantial, but not necessarily strict conformity to that form, is the requirement of the law. — Sharpe v. Orme, 61 Ala. 263; McCarver v. Herzberg, 120 Ala. 523; Frederick v. Wilcox, 119 Ala. 355; 1 Cyc. Law & Pro: 577.

Reversed and remanded.