Courtner v. Etheredge

• Decision Date: 05 February 1907
• Citation: 149 Ala. 78,43 So. 368
• Parties: COURTNER v. ETHEREDGE ET AL.
• Court: Alabama Supreme Court

43 So. 368

149 Ala. 78

COURTNER v. ETHEREDGE ET AL.

Supreme Court of Alabama

February 5, 1907

Rehearing Denied March 2, 1907.

Appeal from Chancery Court, Lawrence County; W. H. Simpson Chancellor.

Bill by B. T. Etheredge and others against Robert G. Courtner administrator. From a decree for plaintiffs, defendant appeals. Affirmed.

Kirk Carmichael & Rather, for appellant.

W. P. & W. L. Chitwood, for appellees.

DOWDELL J.

The present bill is one against the heirs at law of E. C. Ashford, deceased, and for the purpose of foreclosing a mortgage given by said E. C. Ashford during his lifetime to secure the payment of his promissory note for borrowed money. The note and mortgage were made payable to W. C. Sherrod and others, naming them, as school trustees of township 4, range 8 W., from whom the loan of money was obtained. The bill is exhibited in the name of B. T. Etheredge, L. T. Key, and W. C. Bracken, as school trustees of township 4, range 8, Lawrence county, Ala. Under the act approved March 2, 1901 (Acts 1900-01, p. 2070), the complainants became the successors of W. C. Sherrod and others, to whom the note and mortgage were made payable, and the bill, under that act, is properly exhibited in their names as school trustees of township 4, range 8, etc.

The mortgage sought to be foreclosed was given on an undivided interest in certain described lands, "not less than one-fourth" interest, and, with the note which it was given to secure, bore date March 5, 1880. The facts show that the loan was made and obtained as averred in the bill, and that the interest was paid annually and credited on the note down to and including the year 1896. These interest payments relieved both the note and mortgage from the operation of the statute of limitations, and saved the note from the bar of the statute of 6 years, as also the mortgage given to secure it from the bar by prescription of 20 years set up as a defense to its enforcement. Cameron v. Cameron, 95 Ala. 344, 10 So. 506; Code 1896, § 2811, and cases cited; 13 Am. & Eng. Ency. of Law (1st Ed.) 750, 751. There is evidence that tended to prove that the mortgage, when executed and recorded, was neither attested nor acknowledged; but in this case that question is an unimportant one. It was the intention of the parties, as the facts show in the giving of the mortgage, that a lien on the land described should thereby be created to secure the payment of the borrowed money. In such cases, although the instrument may fail as a mortgage in the conveyance of the legal title, still a court of equity will always give effect to such an instrument as an equitable mortgage, and thus preserve the lien and security which the parties intended should be created. Smith v. Hiles-Carver Co., 107 Ala. 272, 18 So. 37; Newlin Finley & Co. v. McAfee, 64 Ala. 357; 6 Am. & Eng. Ency. (1st Ed.) 675.

It is insisted that the mortgage is void, as to the part of the lands embraced in it known as the "home place," on the ground, as alleged, which is set up by way of defense in the answer, that this part of the land was held adversely by Mrs. Carrie Ashford, the wife of A. E. Ashford, at the time of the execution of the mortgage by E. C. Ashford. The facts show that the title to all of the lands in question, upon the death of the ancestor, Thomas Ashford, in the year 1862, descended to his four children, A. E. Ashford, T. T. Ashford, E. C. Ashford, and Mrs. Bridenthall. The title, of course, was in these four children, heirs at law of Thomas Ashford, deceased, as tenants in common. Upon the death of the ancestor, A. E. Ashford administered upon his estate, and during said administration he was in possession of the lands. In the year 1867 the said A. E. Ashford and his brother, E. C. Ashford, made a private parol agreement to divide the lands between themselves, the said A. E. Ashford taking the part known as the "home place," and E. C. Ashford the part known as the "free and easy place," and each one taking possession of the part so allotted; and all of this was without the assent or agreement of the other heirs, who were tenants in common with A. E. and E. C. Ashford. In 1874 the undivided one-fourth interest of A. E. Ashford was levied on under execution and sold at sheriff's sale; E. C. Ashford becoming the purchaser at said sale for a nominal sum. In 1875 it is claimed that E. C. Ashford sold the interest of A. E. Ashford that he purchased at sheriff's sale to Carrie Ashford, the wife of A. E. Ashford. No record, however, of any such conveyance, was ever made. A. E. Ashford and his wife, Carrie Ashford, continued in the possession of the part of said lands known as the "home place" from the time of the division by A. E. Ashford and E. C. Ashford of the lands to the death of Carrie Ashford, and after her death the said A. E. Ashford continued in the possession. During all the while A. E. Ashford managed and controlled the farm; but it is claimed that he did so as the agent of his wife, Carrie T. Ashford, during her lifetime subsequent to the time of the alleged sale of the said E. C. Ashford to the said Carrie Ashford. It will be observed that this time covered the date of the execution of the mortgage, to wit, March 5, 1880.

It must be borne in mind, however, that it is only the undivided one-fourth interest of E. C. Ashford as to which the mortgage is sought to be foreclosed. Unless the adverse possession set up is such as might ripen into title by lapse of time, it is not such as would render the execution of the mortgage void. To constitute adverse possession, it must be open, notorious under claim of title, and must be exclusive; that is to say, it must be adverse to the whole world. The possession of one tenant in common under the law is the possession of all the tenants, and adverse possession by one tenant in common can never arise until there is an actual ouster of the co-tenant. The private parol agreement of division between E. C. Ashford and A. E. Ashford did not and could not pass a title to the land. A. E. Ashford was at the time in possession of the place known as the "home place," and this act of division and his continued possession of the land did not constitute adverse possession by him as against his co-tenants. The legal title, therefore, remained as it was before. As we said above, there was no notice or record evidence of any sale of the land by E. C. Ashford to Carrie Ashford. There was never such change from the possession of A. E. Ashford to his wife, Carrie Ashford, as would give notice to the world of any claim set up by Carrie Ashford. The facts show that E. C. Ashford, when he borrowed the money in 1880 from the school trustees, represented to said trustees that he, the...