Crabtree v. Price

• Decision Date: 18 December 1924
• Docket Number: 7 Div. 350
• Citation: 212 Ala. 387,102 So. 605
• Parties: CRABTREE et al. v. PRICE et al.
• Court: Alabama Supreme Court

102 So. 605

212 Ala. 387

CRABTREE et al. v. PRICE et al.

7 Div. 350

Supreme Court of Alabama

December 18, 1924

Rehearing Denied Jan. 22, 1925

Appeal from Circuit Court, Clay County; W.L. Longshore, Judge.

Action in ejectment by W.S. Crabtree and others against Hugh Price and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Jas. W Strother, of Dadeville, for appellants.

Riddle & Riddle, of Talladega, and L.H. Ellis, of Columbiana, for appellees.

BOULDIN J.

This is a statutory suit in ejectment. Plaintiffs claim title as heirs at law of Thomas Crabtree, deceased; the defendants through mortgage from Thomas Crabtree and wife to Merritt Street, foreclosure deed from C.W. Ashcraft, administrator de bonis non of the estate of Merritt Street, to A.P. Mitchell deed from A.P. Mitchell to J.C. Street, and executory contract of sale from J.C. Street to these defendants in possession. The court below gave the affirmative charge for defendants. The correctness of this ruling is the controlling point in the case. The validity of the mortgage is unquestioned.

Appellants' chief reliance is an insufficiency of the proof of the notice of sale on foreclosure. The foreclosure deed made in 1901 recited full compliance with the terms of the power of sale. These recitals are prima facie evidence of a valid foreclosure. Harton v. Little, 176 Ala. 267, 57 So 851; Naugher v. Sparks, 110 Ala. 572, 18 So. 45; Ward v. Ward, 108 Ala. 278, 19 So. 354.

The plaintiffs having offered no evidence to overcome this prima facie case, any adverse rulings on parol testimony offered by defendants to prove the same facts were harmless. Parol testimony, however, is competent to prove the posting of notices as required by the mortgage. Naugher v. Sparks, supra.

Moreover the defense here did not depend upon proof of the regularity or validity of the foreclosure. A mortgage of realty passes the legal title to the mortgagee, with right of possession, with or without foreclosure, after the law day. Those deriving possession through him can defend ejectment on his title. It is undisputed that these defendants so hold. A purchaser holding under a foreclosure deed made pursuant to a sale under a valid mortgage, if no more than color of title, is not a trespasser. Neither is one holding under such purchaser. The mortgagor, and those claiming under him, must recover on the strength of their title. They must show...