Martinez v. Lindsay

• Court: Alabama Supreme Court
• Writing for the Court: COLEMAN, J.
• Citation: Martinez v. Lindsay, 8 So. 787, 91 Ala. 334 (Ala. 1891)
• Decision Date: 30 January 1891
• Parties: MARTINEZ v. LINDSAY ET AL.

8 So. 787

91 Ala. 334

MARTINEZ v. LINDSAY ET AL.

Supreme Court of Alabama

January 30, 1891

Appeal from circuit court, Escambia county; JOHN P. HUBBARD, Judge.

Section 1844: "Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person, who, by assignment or otherwise, becomes entitled to the money thus secured."

McIntosh & Rich and Creen & Posey, for appellant.

M A. Rabb, for appellees.

COLEMAN J.

Many questions discussed in brief of attorneys for appellant have been eliminated by the agreement of the parties, made in open court, and set out in the bill of exceptions. The facts of the case, as limited by the agreement, may be briefly stated as follows: On the 28th of March, 1884, plaintiff recovered a judgment against M. C. Stokes. Executions were regularly issued on the 1st of March, 1886. The lands in controversy were sold under the execution by the sheriff at which sale plaintiff became the purchaser. The sheriff executed to him a deed, and plaintiff instituted the present suit in ejectment to recover the lands. On the 19th March, 1884, some nine days previous to the date of the judgment, Stokes executed a mortgage on the same lands to H. Baars and E. Downing, to secure the payment of a recited consideration of $3,300, with a power of sale to be executed at any time the mortgagees "may feel unsafe or insecure." The mortgagees prior to the levy of the execution, by writing on the mortgage, assigned their interest in the note and mortgage as follows: "All our interest in this note and mortgage is hereby assigned to Findley & Kennedy, without recourse. Jany. 6th, 1885." The note was also indorsed and made payable at the same time to the order of Findley & Kennedy. On the 19th of February, 1886, nine days before the sheriff's sale, Findley & Kennedy, under the power of sale in the mortgage, foreclosed it by a sale of the property. By their agent, McMillan, they became the purchasers at their own sale. A deed was executed to McMillan, and by him the lands were deeded back to Findley & Kennedy. The defendants, Lindsay & Gay, hold by regular mesne conveyances from Findley & Kennedy. The agreement made in court is as follows: "It was agreed that Findley & Kennedy were bona fide purchasers for value without notice other than such as would be implied from the existence of the judgment against Stokes, and the issuance and existence of the executions issued thereon, and sale thereunder, and record of the deed of that sale." There is no evidence to show the law-day of the mortgage, and whether it was past due, or to become due, when Findley & Kennedy became the assignees of the mortgage and debt. The plaintiff asked the court to give the following written charge: "If the jury, from the evidence, believe that Stokes, the mortgagor, was in failing circumstances at the time he executed the mortgage to Baars & Downing, and that Baars & Downing knew of said insolvency, and they, in addition to...