119 Ala. 361 | Ala. | 1898
In May, 1882, Jasper N. Hendricks and wife executed a mortgage to John S. Paden upon eighty acres of land. The evidence shows that it was not then occupied as a homestead. In April, 1887, the same parties executed a mortgage upon the same land to plaintiff, appellant. Paden transferred by endorsement the mortgage and note executed to him to one J. H. Hendricks not using “apt words” to convey the legal title to land. — Sanders v. Cassady, 86 Ala. 246. The transferree, J. H. Hendricks, foreclosed the mortgage by power of sale contained in the mortgage, and became the purchaser himself. He did not execute a deed to himself. The purchaser then sold and conveyed the land to Charles A. Clayton, who went into immediate possession and has remained in possession. In February, 1894, the plaintiff foreclosed its mortgage by power -of sale, and became the purchaser. The plaintiff instituted the statutory action of ejectment against Clayton to recover the land. The case was tried by the court without a jury and rendered judgment for the defendant. A mere statement of the facts is sufficient to justify the judgment of the court. Both parties claim title from a common source, Jasper N. Hehdricks, the mortgage executed to Paden under which defendant holds being the older. Not only was the Paden mortgage the older, but the mortgage day transpired before the execution of the plaintiff’s mortgage, and there was no legal title in the mortgagor at the time of the execution of the second mortgage.
Again, the rule of law which will not permit a defendant in ejectment to set up an outstanding superior legal title when both parties claim from a common source, has no application. There was no attempt to show an outstanding title superior to the title of Jasper N. Hendricks, the common source of both titles. The purpose of the introduction of the mortgage was to show that whatever title Jasper N. Hendricks owned had passed from him, before the execution of the second mortgage, and did not vest in the plaintiff. Conceding that there
The view we take of the law and the evidence renders it unnecessary to consider any other question.