Marx v. Marx

51 Ala. 222 | Ala. | 1874

B. F. SAFFOLD, J.

The appellants were the tenants of a storehouse, which was owned jointly by one of them, Moses Marx, and Henry Marx. This house had upon it a first and second mortgage executed by these owners, when the half interest of Henry Marx, who had died, was sold by his administrator, and purchased by the appellee. The said appellee gave notice to the tenants of his accession to the right of the deceased owner, and claimed bis share of the rent falling due. They refused to pay to him, because they had been notified by the assignee of the second mortgage to pay to him. He then brought this suit, to recover such portion of the rent as he deemed to be due. The court charged the jury, in substance, that while the owners of the first mortgage would have the right to intercept the payment of the rent to the plaintiff by notice, the latter was entitled to it in preference to the second mortgage, by reason of the right of the first.

The ruling of the court is incorrect. Every conveyance of an estate in any hereditament, corporeal or incorporeal, is good and effectual without attornment of the tenant; but no tenant who has paid his rent, without notice of such conveyance, is liable therefor. R. C. § 1568. That a mortgagee, in any case where he has the right to recover the possession of the premises by ejectment, may intercept from the mortgagor, or one claiming under him, the rents of the same, by notice to the tenant, is abundantly shown in Mansony & Hurtel v. U. S. Bank and its Assignees, 4 Ala. 735, 746; Hutchinson v. Dearing, 20 Ala. 798, 802; and Knox v. Easton, 38 Ala. 345, 356. If there could have been any reasonable doubt of the right of a second mortgagee to bring ejectment, it is dispelled by section 2871 of the Revised Code, which authorizes an execution to be levied on an equity of redemption, in either land or personal property. As both mortgages take precedence of the plaintiff’s purchase, it is immaterial to him that the prior mortgagee fails to assert his privilege. M. & C. P. R. R. Co. v. Talman & Ralston, 15 Ala. 472.

The judgment is reversed, and the cause remanded.