Mims v. Mims

35 Ala. 23 | Ala. | 1859

A. J. WALKER, C. J.

By the sale under execution, the entire interest of Sessions, the mortgagor, passed from him, as fully as it could have done by a sale made by himself. — Code, § 2455. After the entire interest of the mortgagor had thus been transferred to the purchaser at the sale under execution, the mortgagor was .not an indispensable or necessary party defendant to the mortgagee’s bill to foreclose the mortgage; and so, after his de$ith, his heirs would not have been necessary parties defendant. — Batre v. Auze, 5 Ala. 173; Story’s Eq. Pl. § 197.' .

[2.] Stanford Mims, the purchaser at the sale under execution, could not have obtained a dismissal of the complainant’s bill in the court below, upon the ground that the heirs of Sessions were not made parties, if the bill had omitted to make them parties. He could not object that persons were not made parties, unless 'those persons were necessary parties. Eor a like reason, he cannot complain on error that a non-resident, one of the heirs of Sessions, who was not a necessary party, was not brought before the court by a regular publication, filling the requisitions of the statute. He himself was the only necessary defendant, and it is not conceivable that his rights have been in any wise prejudiced by the failui’e to perfect service by publication in a legal!manner as to an unnecessary party.

[3.] Upon the merits of the case, the decree of the chancellor -was right. Section 1270 of the Code makes a conveyance “operative as a record” from the day of the delivery to the judge of probate. The object and effect of this section are clearly to place the conveyance, as soon as the grantee has discharged his entire part in procuring the record, by having it properly proved, or acknowledged and delivered to the officer, in the same attitude as if it were spread upon the record book. This statute relieves a party, who has done all that is devolved upon him by the law, from the consequence of the failure of the probate judge to discharge his duty, or of the imperfect manner in which he discharges it. The conveyance being operative as a record from its delivery to the judge, no subsequent mistake of Ms could deprive it of the operation thus-given it bylaw. It follows that, under the statute above referred to, the mortgage is not impaired in its efficiency against purchasers or creditors, by the fact that there was a mistake in copying it upon the record, whereby it was made to seem to be a security for a smaller amount than that actually provided for in the mortgage. This view of our statutes renders it unnecessary for us to examine the decisions in McGregor & Darling v. Hall, 3 St. & P. 397; Frost v. Beekman, 1 John. Ch. 288; Beekman v. Frost, 18 Johns. 544.

The decree of the chancellor is affirmed.