Langley v. Andrews

• Decision Date: 13 February 1902
• Parties: LANGLEY v. ANDREWS.
• Court: Alabama Supreme Court

31 So. 469

132 Ala. 147

LANGLEY v. ANDREWS.

Supreme Court of Alabama

February 13, 1902

Appeal from chancery court, Tallapoosa county; R. B. Kelly Chancellor.

Suit by Walter Andrews, administrator, against W. T. Langley. Decree for complainant. Defendant appeals. Reversed.

Jas. W Strother, for appellant.

E. M Oliver and W. M. Lackey, for appellee.

HARALSON J.

The note of W. T. Langley for $2,579.68, to A. H. Slaughter, of date 16th June, 1894, payable 15th October, 1894, secured by mortgage, was indorsed on its back, "A. H. Slaughter," and "The within note is hereby transferred to J. E. Andrews, without recourse on us. Feb'y 19th, 1895. S. M. Innman & Co., by J. S. Akers, Atty. in Fact."

The mortgage was transferred to S. M. Innman & Co. by A. H. Slaughter in the following words: "As collaterals to my notes due S. M. Innman & Co. I hereby sell, transfer and convey to S. M. Innman & Co. the within mortgage and hereby convey the property therein mentioned. This Sept. 14th, 1894. [ Signed] A. H. Slaughter. Witness: T. D. Samford."

J. E. Andrews, the alleged assignee of the note and mortgage from S. M. Innman & Co., who were the assignees of the same from said A. H. Slaughter, filed this bill on the 8th of April, 1897, against the mortgagor, W. T. Langley, to foreclose the same. The said J. E. Andrews died, and the cause was revived in the name of Walter Andrews as his administrator.

A. H Slaughter was made a party defendant, but S. M. Innman & Co. were not made parties. It is not questioned, that the assignment of this mortgage by Slaughter to Innman & Co. transferred to them the legal title to the mortgaged land, but it is disputed, that the transfer of the same by Innman & Co. to J. E. Andrews, passed the legal title to him. Their assignment to him is as follows: "In consideration of J. E. Andrews' promissory note to us for $1,519.40 due December 1st, '95, we have assigned, transferred, set over and conveyed, and do by these presents transfer, set over and convey to said J. E. Andrews all claims held by us against W. T. Langley, whether notes, mortgages, accounts or claims of any other description, and all our right, title and interest in and to any and all property real and personal conveyed to us in said claims above described. It is expressly understood and agreed that this transfer is made by us without recourse. Witness our hands and seal this 9th day of Sept., 1895. S. M. Innman & Co. [ L. S.]" This assignment contained the necessary words of conveyance, and clearly showed an intention on their part to transfer the legal title to said Andrews, but it was neither acknowledged, as provided in section 984 of the Code, nor was it attested as provided by section 982, one or the other of which was necessary to be done, in order thereby to pass the legal title. Without the legal title, the appellee's intestate, J. E. Andrews, had no right to maintain this bill for a foreclosure, without making Innman & Co. parties defendant. The court should not order the sale of an imperfect title, one under...