Rothschild v. Bay City Lumber Co.

139 Ala. 571 | Ala. | 1903

SHARPE, J. —

The mortgage of Morris W. and Martha Simmons to Rothschild & Brothers left in those mortgagors, or one of them, the equitable ownership of the land, and their deed to Louisell conveyed to the latter that ownership to the extent of the timber trees mentioned in the deed as “growing, standing and being” on the land. When not stipulated to the contrary, a deed to the trees standing on timbered land conveys an interest in the land, as distinguished from an interest in the trees, considered as chattels. — Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776; Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73. By their deed from Louis-ell, complainants succeeded to his owner slip; and, having thus acquired an interest in the land, subject to the mortgage, they became entitled to redeem from the mortgage. As a general rule, any one who has an interest in mortgaged lands, derived through the right of the mortgagor, and subject to foreclosure, may redeem, though such interest extend only to- part of the equity which originally resided ifi the mortgagor. — Butts v. Broughton, 72 Ala. 294; Jones on Mortgages, § 1055; 11 Am. & Eng. Ency. Law (2d ed.), 214.

The rights of property and redemption which passed from the mortgagors, through Louisell, to complainants, were not prejudiced by the deed of the mortgagors made after their sale to Louisell, purporting to convey the land to tlie Bothschilds. The latter took that deed, not as bona fide purchasers, but with notice of Louisell’s purchase constructively imparted by the record of his deed. They received through this absolute deed of the mortgagors only the equity in the land left after the subtraction therefrom of the timber interest. This deed had effect to unite the fractional equity of the Sim-monses with the legal title held by the Bothschilds under the mortgage, and to extinguish the rights of foreclosure the latter had in the property other than the timber interest, leaving none to which the complainants could have subrogation as prayed in the bill. A redemption of the land as an entirety will leave neither right of, nor necessity for, foreclosure as to any interest in the land. The demurrer, however, goes only to the bill as a whole, and presents no good objection to the same as a bill for the enforcement of complainants’ right of redemption. That right is not dependent on the agreement between Morris W. Simmons and the Boths-childs, purporting to provide for a redemption or pum chase by the former within two years from the making of his absolute deed, and therefore the agreement did not operate as a limitation of time for the assertion of complainant’s equity.

The objection expressed in the demurrer to the join-der as defendants of Morris W. and Martha Simmons is one which they alone are in position to make. — Pate v. Hinson, 104 Ala. 599; Norwood v. Memphis, etc. Railroad, 72 Ala. 565.

Affirmed.