Wilson v. Federal Land Bank of New Orleans

• Decision Date: 24 January 1935
• Docket Number: 3 Div. 115.
• Citation: 230 Ala. 75,159 So. 493
• Parties: WILSON v. FEDERAL LAND BANK OF NEW ORLEANS.
• Court: Alabama Supreme Court

159 So. 493

230 Ala. 75

WILSON v. FEDERAL LAND BANK OF NEW ORLEANS.

3 Div. 115.

Supreme Court of Alabama

January 24, 1935

Rehearing Denied Feb. 28, 1935.

Appeal from Circuit Court, Autauga County; F. Loyd Tate, Judge.

Action of ejectment by the Federal Land Bank of New Orleans against Herbert Jackson Wilson. From a judgment for plaintiff defendant appeals.

Affirmed.

Huddleston Glover & Jones, of Wetumpka, for appellant.

Goodwyn & Goodwyn, of Montgomery, for appellee.

GARDNER Justice.

Statutory action of ejectment by appellee against appellant.

Plaintiff's case rested upon a mortgage executed by defendant in February, 1930, the validity of which is not here in question. The mortgage was foreclosed under the power of sale therein contained, in April, 1932, and foreclosure deed duly executed, which was offered in evidence. State Bank of Elberta v. Peterson, 226 Ala. 13, 145 So. 154. The mortgage indebtedness was to run for a period of thirty years, the first installment becoming due November 1, 1930 and the remaining payments of that date of each succeeding year until the full amount was paid. Upon default in the payment of any installment, the mortgagee may declare the full amount due and payable, and proceed to a foreclosure. The foreclosure deed recites the default in payment, and that the full amount has been declared due and payable, as well as all other matters tending to show the regularity of the foreclosure sale. As against the mortgagor, the recitals in the foreclosure deed are prima facie true. Naugher v. Sparks, 110 Ala. 572, 18 So. 45.

Defendant offered in evidence a mortgage on his crops executed by him to plaintiff in July, 1931, and to secure an indebtedness due October 1, 1931, objection to which was sustained. He stated that defendant proposed to show the personal property mortgage was executed pursuant to agreement with plaintiff; that it was to secure payments in arrears, the nonpayment of which produced the foreclosure; and that these payments would be considered as satisfied to the extent that the mortgage on the land would not be foreclosed until a date much later than the date on which it was foreclosed, and that, therefore, the foreclosure was premature and improper. But plaintiff's case did not rest upon due foreclosure, though proper to be shown in the orderly exposition of plaintiff's title. State Bank of Elberta v. Peterson, supra.

The land mortgage passed to plaintiff the legal title, and, though its language gives rise to the implication, the mortgagee is not to have immediate possession, yet the mortgagee is entitled to possession upon default and passage of the law day of the mortgage. "When one executes a mortgage on his land the legal title passes together with the right in the mortgagee to immediate possession, unless this right is postponed by the mortgage to the law day thereof. If so postponed, then the mortgagee has such right of possession after the law day, and has the legal title from the date of the mortgage." Cowart v. Aaron, 220 Ala. 35, 123 So. 229, 230.

The argument, therefore, for the admissibility of the crop mortgage appears to rest upon the assumption that the foreclosure was essential to plaintiff's recovery. Such is not the case, as pointed out in State Bank of Elberta v. Peterson, supra, and in Crabtree v. Price, 212 Ala. 387, 102 So. 605.

The suit was begun in September, 1932. The mortgage conveyed the legal title, and that the law day of the mortgage had passed, is not controverted. If the execution of the crop mortgage was under agreement to extend past-due payments beyond the date of foreclosure in April, 1932, this still would not tend to show the mortgage was not in default at the time of the commencement of the suit. And it is such default, and not the mere matter of foreclosure that determines the right to immediate possession. We find no error in this ruling.

For a recovery, plaintiff must show title at the commencement of the suit, and on to the time of trial. Rottenberry v. Brown, 142 Ala. 630, 38 So. 804.

Defendant offered in evidence a deed executed August 24, 1932, by plaintiff to one Lamberth embracing the land sued for, in answer to which plaintiff offered a mortgage by said Lamberth to plaintiff, embracing the same land and executed to it on the same date of the deed-August 24, 1932. The mortgage was self-proving, and properly admitted in evidence as going to show the reinvestment in plaintiff of the legal title simultaneously with the execution of its deed to said Lamberth, the mortgagor, and then to rebut the proof offered by defendant to show that plaintiff had by the deed parted with the legal title.

The deed to Lamberth, offered by defendant, shows upon its face the history of the transaction, and expressly provides that said "deed in no wise affects the validity of the mortgage above described given to this bank by the said W. L. Lamberth, which is to secure the payment of the purchase price which constitutes the consideration for the execution of this warranty deed." Defendant argues that the law day of this latter mortgage of Lamberth to plaintiff bank had not passed when suit was brought, and, therefore, plaintiff did not show a right to immediate possession. But this argument has reference to the right of possession as to Lamberth, a third party. And the deed to Lamberth bearing date August, 24, 1932, shows on its face that in fact Lamberth was not himself to have immediate possession, the deed reciting: "The purchaser is to have possession on December 31, 1932, unless legal action is necessary to eject tenant, in which event the bank agrees to take immediate action to give possession."

We are therefore of the opinion the mortgage of Lamberth to plaintiff bank sufficiently answers the evidence offered by defendant as to the deed executed to him by plaintiff, and that plaintiff has shown a legal title at the...