Cotton v. Carlisle

• Decision Date: 11 July 1888
• Parties: COTTON v. CARLISLE.
• Court: Alabama Supreme Court

4 So. 670

85 Ala. 175

COTTON v. CARLISLE.

Supreme Court of Alabama

July 11, 1888

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

This was a statutory real action in the nature of ejectment brought by the appellee, M. N. Carlisle, against the appellant, G. J. Cotton, for the recovery of a certain piece of real estate described in the complaint. Issue was joined on the plea of the general issue by the defendant, and the only question which arose in the trial of the case was whether the mortgagor in possession could set up the outstanding title of the mortgagee to defeat a recovery by the purchaser of the equity of redemption at a sale under execution against the mortgagor. The court refused to give the general affirmative charge in favor of the defendant, but gave the general affirmative charge in favor of the plaintiff; and to this refusal and giving of the respective charges by the court the defendant excepted. There was verdict and judgment for the plaintiff, and the defendant appealed, and assigns the refusal of the court to give the charge requested by him, and the giving of the charge asked by the plaintiff, as error.

Parks & Son, for appellant.

M N. Carlisle, for appellee.

CLOPTON J.

As stated in the bill of exceptions, the only question presented for decision is whether a mortgagor in possession can set up the outstanding title of the mortgagee to defeat an action of ejectment brought by a purchaser of the equity of redemption at a sale under execution against the mortgagor. The sale under an execution against the defendant issued on a valid judgment, the purchase by and the sheriff's conveyance to appellee, who brings the action, and the mortgages made by the defendant prior to the rendition of the judgment, are conceded facts. Defendant insists that the title and estate of the mortgagor is equitable, and will not support the action of ejectment, in which only the legal estate and right of possession are involved. The cases of Childress v. Monette, 54 Ala. 317, and Atcheson v. Broadhead, 56 Ala 414, are cited and relied upon to support the contention on the part of defendant. In the opinion delivered in the first of these cases there are expressions to the effect that the statute subjecting an equity of redemption to sale under execution does not convert the equity into a legal estate authorizing the purchaser to maintain or defend ejectment, and that his right can be asserted and enforced only in equity; and in the second case it was held, on the authority of the first, that a purchaser of the equity of...