Sloan v. Frothingham

65 Ala. 593 | Ala. | 1880

BRICKELL, C. J.

— Of the numerous causes of demurrer, the chancellor sustained only the third, fifth, seventh, tenth, twelfth, thirteenth and fourteenth, of those assigned by Erothingham and others, all other causes being overruled. "Whether these causes of demurrer are well taken, is the only question which can be now considered, however patent may be the insufficiencies of the bill in other respects, which are capable of being cured by amendment in the court below. These causes of demurrer resolve themselves really into two questions, which may be thus stated : first, whether the sale made by the administrators of Cary was not a valid exercise of the power in the mortgage to Tatham ; and, second, if it was not, whether the appellant has lost her right of redemption as a junior mortgagee, by. acquiescence in the sale for a period of six years with full knowledge of all the facts.

By statute it is declared, “ where a power to sell lands is given to the grantee, in any mortgage, or conveyance intended to secure the payment of money, the powrer is part of the security, and may be executed by any person, or the personal representative of any person, who, by assignment or otherwise, becomes entitled to the money thus secured.” Code of 1876, § 2198. The point of contention is, whether the personal representatives of the assignee of a mortgage debt, appointed in the State of his residence, who have not caused their letters of administration to be recorded, and given bond in accordance with- the statute (Code of 1876, §§ 2687-40), can here make a valid sale of lands conveyed by the mortgage. It is true, as urged in argument, that the mortgage debt was of the personal assets of the intestate, Cary, and that personal property has not, as to its succession and distribution, as a general proposition, any locality distinct from, and independent of that of the domicile of the owner. It is also true, that on his death the personal representative of his domicile succeeds to the title to all his personal .property. It is also true, according to the current of modern authority in this country, that, as the personal representative of the domicile succeeds to the title, though he can not sue in another State, he may without suit receive payment of debts, or take possession of personal property found in a foreign jurisdiction. How far he can or may exercise authority in a foreign jurisdiction, depends, of necessity, upon the local law of the jurisdiction. It is only by the comity of the State, that his title and ' authority are so far recognized as to support payments, or the delivery of assets made to him voluntarily. The comity may be withheld, or extended, as the sovereignty may deem the best policy, most promotive of the good of its own citizens.

In Hatchett v. Berney, at the last term, it was held, that our statutes were in their terms prohibitory of the exercise of any authority in this State, by executors or administrators deriving authority from a foreign jurisdiction, and that payments made to administrators appointed in Tennessee, the domicile of the creditor, of a debt secured by mortgage on lands situate in this State, could not be sustained against the claim to foreclose, of a domestic administrator, subsequently appointed, except so far as such payments had been properly applied in payment of debts, or in making distribution. Adhering, as we are constrained to do, to that construction of the statutes, the personal representatives of Gary, deriving their appointment from a tribunal in New York, not having recorded their letters of administration, and given bond, could not have received payment of the mortgage debt, if it had been tendered to them by the mortgagor. They could not have given any discharge, or entered on the record of the mortgage the fact of its satisfaction. The power of sale in a mortgage, in the language of the statute, is part of the security ; and while the statute declares it may be exercised by any person, or the personal representative of any person, who becomes entitled to the money secured, it is intended that only such persons as are entitled to the money, and have the capacity of giving for it valid and operative acquittances, can or shall exercise the power.

A mortgage of lands is more than a mere chattel interest, or a mere security for a debt. It has the properties and qualities of a conveyance in fee, upon condition, especially in courts of law.— Welsh v. Phillips, 54 Ala. 309. Of all such instruments registration must be made, as of absolute conveyances, to preserve them against the rights of subsequent purchasers, or of creditors acquiring liens. The title to real estate is regulated, governed and established, by the lex rei sitce; and whenever it is necessary to make title to lands through the official act of an executor or adrñinistrator, it must be the act of an executor or administrator deriving authority from, or recognized by the lex rei sitce — Kerr v. Moon, 9 Wheat. 565; Cutter v. Davenport, 1 Pick. 81; Hutchins v. State Bank, 12 Metc. 424. The records of the proper tribunals of the situs then afford evidence of all the facts to support the title, and it is by our statutes contemplated that they must afford it. When authority is by the statute conferred on the personal representative of a mortgagee, or of the assignee of a mortgage debt, to exercise the power of selling lands, it was intended a personal representative here appointed, or appointed at the domicile of the mortgagee or assignee, who had caused his letters to be here recorded, and given bond with surety as is required by the statutes, should exercise the power. Of their appointment and authority, the records of our own courts then furnish evidence, and they are amenable to our laws. The sale of the mortgaged premises was void, not merely voidable.

Acquiescence for an unreasonable length of time, in a sale of mortgaged premises, which, is merely voidable at the election of parties who have the equity of redemption, if not fairly explained, will operate a waiver of the infirmities, and a confirmation of the sale. — 2 Jones’ Mort., § 1922. But, when a void sale is made — a sale which can not operate a dissolution of the relation of mortgagor and mortgagee, nor cut off the equity of redemption — acquiescence in it, or the failure to seek redemption for a less period than will form a bar under the statute of ^imitations, is not a waiver of the invalidity, or a confirmation of the sale,

Beversed and remanded.