86 Ala. 246 | Ala. | 1888
To sustain a recovery in this case, which is an action of ejectment under the statute, the plaintiffs were required to show in themselves a legal title' to the lands in controversy.
This they attempted to do in two ways: (1.) As assignees of a mortgage on the lands, -which had been executed by J. C. and W. A. Bryan, on October 12, 1885, to the assignors, G. W. Sanders & Co., who were the mortgagees in the instrument; and (2) as purchasers under a sale of the mortgage premises made by themselves under the power, which passed to them as part of the security, with the assignment of the mortgage,
2. It is contended further, that, although the assignment may not have operated to transfer the legal title to the plaintiffs, they acquired it by an execution of the power of sale, which is a part of the security, and which is authorized by statute to be executed by any one “who, by assignment or otherwise, becomes entitled to the money thus secured.” — Code, 1886, § 1844. "We may concede this to be the general rule, under the construction which has been given to this statute, which has the same effect as if the statute were made a part of the mortgage deed. — Buell v. Underwood, 65 Ala. 285. The difficulty to be encountered, in this aspect of the case, lies in the fact that the equitable assignees of the mortgage themselves executed the power, through the agency of an auctioneer, and became the pur
The plaintiffs, having nothing more than an equitable title to the lands, were not entitled to recover in the present action. The court consequently erred in giving to the jury the charge requested — to find for the plaintiffs, if they believed the evidence.
3, The court properly refused to allow the defendants to put in issue the amount of the debt from G. W. Sanders & Co., the mortgagees, to the plaintiffs, which was the consideration of the transfer of the mortgage. It is only the amount of the mortgage debt which the statute authorizes to be put in issue in an action of ejectment brought by a mortgagee. — Code, 1886, § 2707.
Other assignments of error are needless to be considered.
Reversed and remanded.