108 So. 737 | Ala. | 1926
The pleadings in this cause are for the most part sufficiently shown in the report of a former appeal. Smith v. Rhodes,
On the return of the cause to the trial court there was a submission for final decree, as the decree recites, "on all of the pleadings in the cause and on the testimony noted by the register and on the verdict of the jury on a trial in the circuit court," to which issues had been referred by decree. The verdict as found recited in the final decree and elsewhere in the record, so far as touching the matters in dispute on this appeal, was as follows:
"(1) We, the jury, find that Frank Roberts and Amanda Roberts did execute to H. T. Wimberly Co., on April 2, 1894, a mortgage on a part of the lands described in the bill of complaint.
"(2) We find that Frank Roberts and Amanda Roberts did execute to H. T. Wimberly Co., on June 3, 1895, a mortgage on a part of the lands described in the bill of complaint.
"(3) We find that said mortgages were legally transferred to Shell Rhodes.
"(4) We find said mortgages were foreclosed, and that was a balance due on same at the time of the foreclosure."
If there was other evidence in the cause, it does not appear in the transcript of the record, nor was it noted in the note of testimony.
From the auctioneer's certificate, exhibited as a part of appellee's answer and cross-bill, it appeared that defendant appellee, Rhodes, had become the purchaser of the land in controversy, 120 acres, at a foreclosure sale, August 27, 1909; but there was no proof by exhibit or otherwise that a deed had been executed in pursuance of the sale. But it was averred in the cross-bill that $360, the amount bid at the sale, had been paid to the foreclosing assignees of the mortgage, nor was this averment denied. It results that appellee had a perfect equity (Brunson v. Morgan,
The parties have chosen to rest their respective cases upon the effect of the averments concerning possession and the presumptions *692 to be drawn therefrom and the findings of fact certified from the law side to the equity side of the court. There is no evidence on the subject of possession. The parties trace their right and title back to a common source, Frank and Amanda Roberts. In the original bill it is averred that Frank and Amanda were seized, and in actual, open, and notorious possession, of the tract now in controversy, 120 acres, in 1911 when they died, and the further averment is that original complainants, heirs of Frank and Amanda, have continued in such possession down to the filing of this bill, viz. August 6, 1920. For defendant and cross-complainant, Rhodes, it is averred that Frank and Amanda, in 1894 and 1895, executed and delivered two several mortgages to Wimberly Co., which were assigned to Shell Rhodes, and foreclosed by a sale under power in August, 1909, at which sale defendant cross-complainant, Rhodes, became the purchaser, as he was entitled to do under the terms of the mortgage, after which he took and retained possession until, in the spring of 1919, some of the complainants or their agents entered and began to cut the timber. One purpose of the cross-bill was to enjoin the trespass averred, and the decree contained a perpetual injunction against such trespass. Complainants' answer to the cross-bill reiterated their averment of possession.
Appellants, original complainants in the court below, contend that appellee's claim of right and title was barred by laches and limitation. There being no evidence of payment of the mortgage debt except as the result of foreclosure, nor of an adverse holding, appellee was not barred at the time of the foreclosure, for the reason that 20 years, necessary to raise the presumption of payment of the mortgage debt, had not elapsed. Coyle v. Wilkins,
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.