Federal Land Bank of New Orleans v. Farris, 4 Div. 704.

• Decision Date: 11 May 1933
• Docket Number: 4 Div. 704.
• Citation: 148 So. 123,226 Ala. 574
• Parties: FEDERAL LAND BANK OF NEW ORLEANS v. FARRIS.
• Court: Alabama Supreme Court

148 So. 123

226 Ala. 574

FEDERAL LAND BANK OF NEW ORLEANS v. FARRIS.

4 Div. 704.

Supreme Court of Alabama

May 11, 1933

Appeal from Circuit Court, Geneva County; E. S. Thigpen, Judge.

Action in nature of ejectment by the Federal Land Bank of New Orleans against J. E. Farris. From a judgment of nonsuit plaintiff appeals.

Affirmed.

B. W Smith, of Samson, and A. A. Smith, of Hartford, for appellant.

Mulkey & Mulkey, of Geneva, for appellee.

BROWN Justice.

This is a statutory action in the nature of an action of ejectment for the recovery of certain lands, together with damages for the detention thereof, and the sole question presented by the assignment of errors is the measure of the plaintiff's damages.

The plaintiff is a mortgagee who foreclosed and became the purchaser at the foreclosure sale.

The mortgage was given to secure a loan, payable in yearly installments running through a number of years, with the provision that, on failure of the mortgagor to pay in full any one of said installments, the mortgagee reserved the option to declare the entire indebtedness due and foreclose.

An installment of $450 became due and payable on November 15 1930, on which $150 was paid in December, 1930, and which was entered to the credit of the mortgagor. The mortgagor failed to pay the balance due on said installment, and on September 16, 1931, the plaintiff foreclosed, purchasing at the foreclosure sale, and on said date the plaintiff gave the defendant the following notice: "Possession is demanded of you of the following described real estate situated in Geneva County [describing the lands]. Possession of said lands is demanded by virtue of default in the payment of the indebtedness secured by mortgage executed on said lands on the 15th day of November, 1926, the mortgagee having elected to enter and take possession of said premises, and also by virtue of the purchase of said property at the sale under said mortgage held on the 16th day of September, 1931, and you are given the time allowed by law to vacate said premises, and the undersigned hereby gives notice that they will claim reasonable rents on said premises during the remainder of the term, and unless you attorn to, the undersigned action of ejectment will be brought for the possession of the lands."

The defendant failed to surrender possession or attorn to plaintiff, and this action was filed on the 8th day of October, 1931.

On the trial the plaintiff offered evidence going to show the reasonable rental value of the land for the entire year 1931. The defendant objected to this evidence on the ground that plaintiff was only entitled to recover mesne profits for the time of the unlawful holding. The court sustained this objection, and because of this adverse ruling the plaintiff took a nonsuit, and judgment was rendered accordingly.

The mortgage, though it vested in the mortgagee the legal title to the land, recognized in the mortgagor the right to retain the possession, use, and enjoyment...