Harton v. Little
Decision Date | 21 December 1911 |
Citation | 57 So. 851,176 Ala. 267 |
Parties | HARTON v. LITTLE ET AL. |
Court | Alabama Supreme Court |
Rehearing Denied Feb. 15, 1912.
Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.
Suit by H. M. Harton against W. M. Little and others. From a decree for defendants, complainant appeals. Affirmed.
S. C M. Amason, for appellant.
Frank S. White & Sons and Campbell & Johnston, for appellees.
The appellant, H. M. Harton, filed his bill to declare and enforce an alleged trust in certain land to which the Gibson Realty Company, one of the respondents, is shown to have a clear record title. Subsequent to the creation of the alleged trust and the alleged accrual to complainant of an undivided half interest in the land, the alleged trustee--with complainant's knowledge, and without protest from him apparently--conveyed said half interest to complainant's wife, reciting a purchase price of $5,000. Contemporaneously with this transaction, complainant and his wife executed a mortgage deed granting and selling said land to the said trustee-grantor to secure the payment of a recited purchase-money note for $3,000, as recited in the mortgage. This mortgage was afterwards foreclosed by sale under the power therein granted; the recitals of the foreclosure deed being that Mrs. Johnston, the mortgagee and payee, "for valuable consideration and before maturity indorsed transferred and assigned to the First National Bank of Birmingham the note and mortgage aforesaid," and that "W. J. Gilmore purchased for valuable consideration the note due said bank as aforesaid, and received an indorsement and transfer of the security above mentioned."
The recitals of this deed are full, and amply show, prima facie a valid foreclosure of the mortgage by the transferee and owner of the debt which it secured. Naugher v. Sparks, 110 Ala. 572, 18 So. 45. Moreover, regularity and validity are presumed in the absence of evidence to the contrary. Ward v. Ward, 108 Ala. 278, 19 So. 354.
The title thus acquired by Gilmore as purchaser at the foreclosure sale for the price of $3,951.20 passed by mesne conveyances to the Gibson Realty Company, which paid therefor to its grantor the sum of $11,666.66 in money, and received a statutory warranty deed of conveyance.
The only impeachment of this title attempted by the bill of complaint is by the allegation that Mrs. Johnston did not assign and transfer the mortgage to the bank, and that the bank did not assign and transfer the mortgage to Gilmore, but merely delivered it to him. It is not at all necessary that a mortgage deed be assigned in order to enable the owner of the debt to foreclose under a power of sale. The power of sale is a part of the security and may be exercised ...
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