103 So. 2d 714 | Ala. | 1958
Appellant filed a statutory action of ejectment against appellee in July, 1947, to recover 71 acres of wild and uncultivated land in Chilton County. The cause was transferred to equity and, on appeal, we held that the cause should be retransferred to the law side of the docket,
Both parties claim title through a common source, Moses McCary. The Alabama Mineral Land Company sold the suit property to Moses McCary in 1914, reserving minerals and mining privileges. Moses executed a mortgage and three notes back to the company, one being due November 15, 1915, one November 15, 1916, and one November 15, 1917. The first note was paid. On February 2, 1918, the mortgage and the two remaining notes were transferred by Alabama Mineral Land Company to T. U. Crumpton Company, a corporation which was dissolved in 1928, and the assets, including the mortgage and the two notes, were transferred to Miss Blossom Crumpton, the appellee, and the transfer *487 was placed on record where the mortgage was recorded.
Moses McCary died in 1926 and left surviving one child, Frank, who died in 1929, leaving surviving one child, Daniel McCary, the appellant. There is no contention that Frank or Daniel have ever been in possession of the property since the death of Moses.
Appellee went into possession of the land as mortgagee within a few years after the death of Moses McCary. The taxes were assessed to the estate of Moses McCary until 1931, when appellee began assessing and paying taxes, and has continuously done so since. Appellee's possession amounted to going out to look over the property about twice a year, giving permission to the REA to put poles on the property and giving permission to the county to build a road across it.
On May 31, 1948, after suit was filed and before trial, Alabama Mineral Land Company conveyed the mortgage, the notes and the land to appellee, and this instrument was recorded. This conveyance was admissible under the rule that the plaintiff, to recover in ejectment, must have title when he files his suit, and also at the time of trial; but the defendant can defend under any title acquired by him before the trial under the plea of not guilty. Johnson v. Sandlin,
Appellant contends for the application of the rule that after a period of twenty years, without any payment, settlement, or other recognition of liability, mortgages and liens will be presumed to have been paid. Eatman v. Goodson,
A mortgage on real estate passes to the mortgagee a fee-simple title, unless otherwise expressly limited. Mallory v. Agee,
"It is settled that in suits in eject-the legal title prevails." Thompson v. Page,
"The payment of taxes on property and an occasional trip over the land looking after it do not alone constitute adverse possession. But payment of taxes along with evidence of possession is admissible to show bona fides of a claim and to illustrate the meaning of acts of possession." Pfaffman v. Case, supra.
Under the facts of the instant case, legal title passed to appellee under the mortgage, and this was sufficient defense unless appellant showed that title *488 was divested out of the mortgagee or his privies. This he failed to do to the extent that it only became a question of law. We think there was sufficient evidence to submit the questions of whether the presumption of payment had been rebutted and appellee's adverse possession to the jury.
Appellant's other contention is that the mortgage had been satisfied on the record. The following notation was written on the margin of a page on which the mortgage was recorded:
"Satisfied Paid in full Jany 1st 1910. T. U. Crumpton Co. By C. M. Foshee Genrl Mgr."
Clearly, the date is a mistake because the mortgage was not executed or recorded until 1914. C. M. Foshee testified that the purported satisfaction was an error; that he usually had several mortgages to satisfy each year when he made a trip to Clanton for that purpose; that the last two notes had not been paid and that they were still unpaid when they were transferred to appellee. The entry of satisfaction on the margin of a record raises, as between the parties, only prima facie a presumption of payment and is not conclusive. Wilson v. Federal Land Bank of N. O.,
Finally, appellant argues that the court erred in refusing to give requested written charge P3 which reads: "The Court charges the jury that if they believe the evidence in this case the defendant has no rights under the mortgage given in 1914," and cites Gay v. Fleming,
The judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur.