Foster v. Carlisle

• Decision Date: 29 November 1906
• Citation: 148 Ala. 259,42 So. 441
• Parties: FOSTER ET AL. v. CARLISLE ET AL.
• Court: Alabama Supreme Court

42 So. 441

148 Ala. 259

FOSTER ET AL. v. CARLISLE ET AL.

Supreme Court of Alabama

November 29, 1906

Appeal from Circuit Court, Bullock County; A. A. Evans, Judge.

"To be officially reported."

Ejectment by R. M. Foster and others against George F. Carlisle and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

R. E L. Cope and J. D. Norman, for appellants.

E. L Blue and D. S. Bethune, for appellees.

McCLELLAN J.

Statutory action in the nature of ejectment. Affirmative charge given for defendants. Plaintiffs appeal.

It seems to be conceded that the turning point on the trial was the exclusion of an unpaid mortgage, a link in plaintiffs' chain of title, on which was indorsed the following credit: "Rec'd on within note & mortgage $1,000.00 (one thousand dollars) September 19, 1898, for lot"--which date was several years after the law day of the mortgage, and after default in the payment thereof. Of even date with the credit quoted the mortgagor executed and delivered to the mortgagee a deed to the premises mentioned in the credit. It has been repeatedly adjudged by this court that a mortgage of land possesses a dual character "bearing one in a court of law and another in a court of equity." It is also settled in this state that in a court of law, after the law day of the mortgage and default in the performance of the condition as stipulated in the instrument, the estate in fee in the realty, there being no contractual conditions inhibiting it, vests absolutely in the mortgagee, leaving only the equity of redemption in the mortgagor. Welsh v. Phillips, 54 Ala. 309, 25 Am Rep. 679; Childers v. Monette, 54 Ala. 317; Draper v. Walker, 98 Ala. 310, 13 So. 595; Fields v. Clayton, 117 Ala. 538, 23 So. 530, 67 Am St. Rep. 189. Of this equity of redemption, in the law court, no notice can be taken. At law, whenever the legal and equitable titles or interests coincide in the same person, without an intermediate vested estate, the equitable becomes extinguished. Welsh v. Phillips, supra; 20 Am. & Eng. Ency. Law (2d Ed.) p. 588. It results, in this case, that on September 19, 1898, only the equity of redemption resided in the mortgagor, the legal title having become absolute in the mortgagee; and the conveyance of that date affected only to convey to the mortgagee this equity of redemption, and in him was absorbed by the legal title conveyed by the mortgage to him. There...