Turman v. Sanford

• Decision Date: 16 February 1901
• Parties: TURMAN v. SANFORD
• Court: Arkansas Supreme Court

61 S.W. 167

69 Ark. 95

TURMAN v. SANFORD

Supreme Court of Arkansas

February 16, 1901

Appeal from Scott Circuit Court, JNO. B. MCCALEB, Judge.

STATEMENT BY THE COURT.

William B. Turman was on the 28th day of August, 1882, the owner of the tract of land in controversy. On that day J. C Gilbreath, without having any title, mortgaged it to A. D Peace. Afterwards on the 11th day of August, 1884, Turman conveyed the same land to Gilbreath, and received back from Gilbreath a bond for title. The conveyance from Turman to Gilbreath, though in the form of an absolute deed, was in fact a mortgage, and was afterwards so declared in a litigation between Turman and the administrator of Gilbreath. Afterwards Peace brought suit, and foreclosed his mortgage against Gilbreath, Turman not being a party to the action. At the foreclosure sale Thomas N. Sanford purchased the land. The sale was confirmed, and a deed made to Sanford. Afterwards in a litigation between Turman and the administrator of Gilbreath it was adjudged that the mortgage from Turman to Gilbreath was satisfied, and the land declared to belong to Turman. Sandford was not a party to this litigation, and afterwards brought this action of ejectment to recover the land from Turman. The circuit court held that the conveyance of Turman to Gilbreath inured to the benefit of Peace, the mortgagee of Gilbreath, and that Sanford by his purchase of the foreclosure sale became the owner and entitled to the possession of the land. Judgment was therefore entered in his favor for the recovery of the land from which judgment Turman appealed.

Judgment reversed and cause remanded.

Hill & Brizzolara, for appellant.

The after-acquired title of Gilbreath did not inure to Peace. The words "grant, bargain and sell" in Sand. & H. Dig. § 696, do not operate as a covenant of warranty to convey after-acquired title. 18 Mo. 531; 39 Mo. 536, 566; 47 Ark. 111. There was nothing in the mortgage to Peace sufficient to carry the after-acquired title. 3 Washb. Real Prop. (5th Ed.), * 466. For the common-law rule as to after-acquired title, see: Coke, Litt. §§ 265, 265 a; 2 Ping. Real Prop. § 1210; 11 How. 297; 3 Washb. Real Prop. * 473, 479. The estoppel upon which the doctrine is based does not operate against strangers. 3 Washb. Real Prop. * 473, 479; 11 How. 297; Jones, Mort. § 683; Tied. Real Prop. § 858; 2 Ping. Real Prop. § 1214; 59 Ark. 299. The after-acquired title can inure to the grantee only when the grantor subsequently acquires it in the same capacity in which he conveyed it. 2 Ping. Real Prop. § 1210. Ordinarily the purchase at foreclosure takes only the title held by the mortgagor at the time of execution of the mortgage. Wiltsie, Mortg. Force. § 577. If after-acquired title is to be affected, it must be alleged in pleading. 2 Jones, Mortg. § 1581; 2 Ping. Mortg. 1978. The foreclosure purchaser took title pendente lite and subject to equities of appellants. 12 Ark. 421; 16 Ark. 175; 15 Ark. 344; 31 Ark. 491; 57 Ark. 569; 36 Ark. 217; 57 Ark. 97; 29 Ark. 357; 30 Ark. 249.

H. C. Mechem and F. A. Youmans, for appellee.

The legal estate, under a mortgage, passes to the mortgagee. 43 Ark. 504. That carries with it the right of possession, at all events, after forfeiture. 30 Ark. 520; 1 Jones, Mortg. § 15. Under Sand. & H. Dig., § 699, the after-acquired title of the mortgagee passed to his previous grantee. 4:7 Ark. 111; 63 Ark. 569.

RIDDICK J. BUNN, C. J., dissents.

OPINION

RIDDICK, J., (after stating the facts).

The questions presented by this appeal are: Did the mortgage from Turman to Gilbreath inure to the benefit of Gilbreath's mortgagee, Peace? And did Sanford, by purchasing at the Peace foreclosure sale, succeed to the rights of Peace, and become entitled to the possession of the land? The statute upon which Sanford bases his right to recover is as follows: "If any person shall convey any real estate by deed purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterward acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance." Sand. & H. Dig. § 699. Under this statute if Gilbreath had, subsequent to the execution of his mortgage to Peace, acquired title in his own right to the land mortgaged, it would, by virtue of the statute, have inured to the benefit of his mortgagee. Kline v. Ragland, 47 Ark. 111, 14 S.W. 474. But he only secured a mortgage upon it; for, though the deed obtained from Turman was absolute in form, it is admitted that it was executed to secure a debt, and was in law a mortgage, and must be treated as such. And there is room for doubt whether the interest in mortgaged land acquired by the mortgagee by virtue of the mortgage before foreclosure is such an estate as will by the statute pass to a grantee to whom he has conveyed the land prior to his mortgage. For the mortgagee before the foreclosure is neither at law nor in equity the real owner of the land. The legal title, it is true, passes to him by the mortgage, but he holds it for the protection of his debt, and for that purpose only. If he takes possession before foreclosure, he must account to the mortgagor for rents and profits, and so soon as his debt is paid his rights in the land cease. He has before foreclosure no such estate in the land as can be attached for his debts or levied upon and sold under execution. If he dies, his widow has no right of dower in it as real estate. His interest as mortgagee does not descend to his heir, but passes to his personal representative as personal assets. On the other hand, all the usual incidents of ownership belong to the mortgagor in possession of the mortgaged land before foreclosure. His interest therein can be attached for his debts or levied upon and sold under execution. He can maintain an action of ejectment for the land against a stranger, and the mortgage cannot be set up as a defense. In case of death his interest therein passes not to his administrator as personalty, but descends as real estate to his heir, and his widow is entitled to dower in it as in other real property. Thus, while, for the purpose of protecting the mortgage debt, the mortgagee, as between himself and the mortgager, is considered the owner of the land, for other purposes and between other parties not holding under the mortgage the mortgager is the owner. The interest of the mortgager is considered and treated as real estate, while that of the mortgagee is only a personal asset. Terry v. Rosell, 32 Ark. 478; Mills v. Shepard, 30 Conn. 98; 1 Jones, Mort. (5th Ed.), §§ 11, 15, 664, 698, 699, 703; 3 Pomeroy's Equity, §§ 1186, 1187.

There are other objections to the contention that the interest of a mortgagee will pass under this statute. The statute only...