Robinson v. Cahalan
| Decision Date | 26 November 1890 |
| Citation | 8 So. 415,91 Ala. 479 |
| Parties | ROBINSON v. CAHALAN. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jefferson county: JAMES B. HEAD, Judge.
Ejectment by J. J. Cahalan against W. J. Robinson. To justify his claim, plaintiff introduced in evidence a grant of the land in controversy from the United States government to Hayes and the defendant objected to the introduction of this grant in evidence: but the court overruled his objection, and defendant thereupon duly excepted. Plaintiff also introduced in evidence a mortgage from the said Hayes to the Jefferson County Savings Bank, which mortgage was executed by said Hayes and his wife, and was duly acknowledged by said Hayes and his wife, on the day of its execution as required by law. Defendant objected to the introduction in evidence of this mortgage, on the ground that its execution was not proved but the court overruled the objection, and the defendant duly excepted. This mortgage was indorsed by the Jefferson County Savings Bank to one Mrs. Morrow in the following language "For and in consideration of the sum of two hundred and 60-100 dollars, we hereby transfer the within deed, or mortgage, to Mrs. Mary A. Morrow, wife of John C. Morrow without recourse on us." The plaintiff also introduced in evidence a deed from the Jefferson County Savings Bank to plaintiff, which alleged that the deed was made to carry out a sale of the land under a provision of the mortgage. Defendant objected to the introduction of the same in evidence, and duly excepted to the court's overruling his objection. The court, at the written request of the plaintiff, gave the general affirmative charge for the plaintiff, and refused to give the general affirmative charge for the defendant. There was judgment for plaintiff, and defendant now prosecutes this appeal.
Lane & White, for appellant.
W. D. Bulger, for appellee.
There was no error in admitting the patent to Hayes in evidence without proof of its execution. Code, § 2781; Hines v. Greenlee, 3 Ala. 73; Bates v. Herron, 35 Ala. 117. Neither was there error in receiving the mortgage in evidence, without proof of its execution. It was duly acknowledged, certified, and recorded within the statutory limit, and thereby became self-proving. Code, § 1798, and note. It is thus shown that the savings bank proved a title in itself, which, if not divested, would maintain ejectment. 3 Brick. Dig. p. 324, § 19. The indorsement of the mortgage to Mrs. Morrow, containing no words of grant, did not divest the legal title out of the savings bank. Sanders v. Cassady, 86 Ala. 246, 5 South. Rep. 503. We have thus shown that, unless the paper purporting to be a deed from the Jefferson County Savings Bank to Cahalan conveyed the legal title, plaintiff has shown no right to recover in an action at law. The mortgage from Hayes to the savings bank contains a power of sale on 30 days' published notice, if the mortgagor made default in paying the debt secured. The mortgage bears date in February, 1886. The instrument, which, it is claimed, conveys title to Cahalan, is dated in January, 1889, nearly two years after the indorsement of the mortgage to Mrs. Morrow. It is in form a quitclaim deed, purporting to convey the lands in controversy. It recites the making of the mortgage, its transfer to Mrs. Morrow, and states that "said lands were...
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Dewberry v. Bank of Standing Rock
... ... 101, 79 So. 493; Speakman v ... Vest, 166 Ala. 235, 240, 51 So. 980; Summerford v ... Hammond, 187 Ala. 244, 65 So. 831; Robinson v ... Cahalan, 91 Ala. 479, 8 So. 415, did not show whether ... sale was public or private, and the burden rested upon the ... purchaser to show ... ...
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Robinson v. Pierce
... ... Billingsly, supra, and ... many subsequent analogous cases. With us such an irregular ... sale is voidable, and the equity of redemption, without ... regard to the statutory right of redemption, will continue ... until enforced or barred by laches. In Robinson v ... Cahalan, 91 Ala. 479, 8 So. 415, there was a fatally ... defective execution of the power of sale in a mortgage on ... account of nonconformity to the prescribed formalities as to ... notice, etc., but a deed was made to the purchaser by the ... mortgagee; and it was held that this deed, ... [24 So ... ...
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Dinkins v. Latham
...will not be heard to object to, we need not decide. See Foster v. Goree, 5 Ala. 424." Sanders v. Askew, 79 Ala. 433. In Robinson v. Cahalan, 91 Ala. 479, 8 So. 415, the action was in the nature of ejectment, the Chief Justice again considered the question, as follows: "The bill of exception......
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Kelley Realty Co. v. McDavid
...object to, we need not decide." The instrument there involved was a deed of trust, and the trustee was a third person. In Robinson v. Cahalan, 91 Ala. 479, 8 So. 415, court apparently held that, in the absence of proof of advertisement, the deed to a purchaser at foreclosure sale would not ......