Lester v. Walker

• Decision Date: 11 May 1911
• Citation: 172 Ala. 104,55 So. 619
• Parties: LESTER v. WALKER.
• Court: Alabama Supreme Court

55 So. 619

172 Ala. 104

LESTER v. WALKER.

Supreme Court of Alabama

May 11, 1911

Rehearing Denied June 8, 1911.

Appeal from City Court of Birmingham; C. C. Nesmith, Judge.

Statutory ejectment by Willis A. Lester against J. W. Walker. Judgment for defendant, and plaintiff appeals. Affirmed.

The plaintiff relied upon deeds executed to him by John H Williams as to certain lots, and by W. C. Terry as to others and upon the payment of the purchase money, together with deeds conveying the property to his grantor. Walker claimed under a mortgage made by J. H. and Alice Williams to W. H Osborn and a transfer of said mortgage from Osborn to Walker which transfer is as follows: "November 6, 1906. For and in consideration of $37.00 to me cash in hand paid by J. W. Walker, the receipt whereof is hereby acknowledged, I do hereby transfer, sell, assign, and deliver to the said J. W. Walker, without recourse on me, two promissory notes, each for $18.60, dated August 23, 1906, payable to W. H. Osborn, 30 and 60 days after date, said notes secured by mortgage on land at Woodlawn, Alabama; also transfer, assign, sell, and deliver to said Walker the said mortgage, which said mortgage is now in the probate office for record, and authorize the probate judge of Jefferson county, Alabama, to deliver to said Walker or his representative said mortgage." The mortgage contained a power of sale, and was filed for record on the 31st day of October, 1906, and recorded on the 14th day of November following. Nearly a year later the mortgage was foreclosed under power of sale, and deed made on August 19, 1907, from Walker, as transferee and assignee, to the purchaser, which deed was filed for record November 16, 1908, and recorded December 3d following. It further appeared that one J. R. Ryan became the purchaser, and put Walker in possession of the property as his tenant, placed some building material on the property, and built a house thereon.

F. E. Blackburn, for appellant.

W. E. Martin, for appellee.

McCLELLAN J.

In the absence of misrepresentation, fraud, or deceit, the execution of an instrument by one who can read and write is binding upon him, even though he did not read it, or was ignorant of its contents. Bank of Guntersville v. Webb & Butler, 108 Ala. 132, 19 So. 14.

An assignment and transfer of evidence of debt, so as to entitle the assignee or transferee to the "money thus secured," effects to clothe the assignee or transferee with the mortgagee's power of sale, created by the mortgage, notwithstanding the terms of the written assignment or transfer are inefficient to carry the legal title to the real estate covered by the mortgage. Ward v. Ward, 108 Ala. 278, 19 So. 354.

The execution of such a power by the assignee or transferee will pass the title to the purchaser...