Quinn v. Tennessee Coal, Iron & R. Co.

• Decision Date: 20 December 1917
• Docket Number: 6 Div. 686
• Parties: QUINN v. TENNESSEE COAL, IRON & R. CO.
• Court: Alabama Supreme Court

77 So. 340

201 Ala. 46

QUINN v. TENNESSEE COAL, IRON & R. CO.

6 Div. 686

Supreme Court of Alabama

December 20, 1917

Appeal from Circuit Court, Blount County; James E. Blackwood, Judge.

Action in ejectment by Will Quinn against the Tennessee Coal, Iron &amp Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The evidence for defendant tended to show that James Quinn lived on the land sued for from the time he entered it until his death in 1885, and that about two months after his death a patent was issued to his wife, who continued to reside on the land until her death some time in 1887, after which the oldest daughter of James Quinn continued to live on the property for about five years. Will Quinn, plaintiff, was about two years old at the time his father died. Plaintiff then introduced a patent from the United States government to the land in question of date May 4, 1885. Plaintiff offered also certified copy of final receipt No. 3603, of date January 19, 1885. Defendant's evidence was a mortgage purporting to have been executed by James Quinn and wife January 12, 1885, properly acknowledged by husband and wife separately on the date executed, and conveying said land to Burrell Smith. Plaintiff objected to the introduction of the mortgage on the ground, among others, that it was executed prior to the date of the patent, prior to the date of the final certificate, and prior to the date of the final receipt. Defendant then offered deeds properly executed and acknowledged showing foreclosure of said mortgage by the mortgagee, and conveyance by him to the Tennessee Coal, Iron & Railroad Company, prior to the bringing of this suit.

James B. Burgin and W.A. Jenkins, both of Birmingham, for appellant.

Percy Benners & Burr and Spier Whitaker, all of Birmingham, for appellee.

ANDERSON C.J.

The mortgage in question contained the statutory warranty, and therefore included an after-acquired title, nothing to the contrary appearing in the instrument. Indeed, this well-established principle is not questioned by the appellant, but it is insisted that the mortgage was void because made before the issuance of the receiver's certificate, and was contrary to public policy because of the oath required, under section 2291 of the United States Revised Statutes (U.S.Comp.St.1916, § 4532); that the property had not been alienated and reliance is placed upon the case of Anderson v. Carkins, 135 U.S. 483, 10 Sup.Ct. 905, 34 L.Ed. 272. The great weight of authority seems to be that a mortgage upon the land, even before the issuance of the receiver's certificate, is binding and is not such an alienation as is prohibited by the federal statute. See Stark v. Morgan, 73 Kan. 453, 85 P 567, 6 L.R.A. (N.S.) 934, and note, 9 Ann.Cas. 930, for a full discussion of this subject. It is true that in those jurisdictions so holding, a mortgage is regarded as merely a security for a debt, while with us it has a dual capacity "a conveyance of an estate in lands and a security for a debt, bearing one character in a court of law and another in a court of equity." Welsh v. Phillips, 54 Ala. 309, 25 Am.Rep. 679. We are relieved, however, from having to...