Childress v. Monette , 54 Ala. 317 ( 1875 )

BRICKELL, C. J.

The deed of trust conveying the lands to Sadler, to secure the payment of the bill of exchange is, in its nature and legal operation, a mortgage. The legal title passed to Sadler, the trustee, leaving in the grantor, the equity of redemption only — the right to revest himself with the legal estate in paying the debt secured. This equity of redemption was not the subject of levy and sale, under execution at law prior to the Code. It is under the Code subject to execution, and the effect of a sale is expressly declared to be the subrogation of the purchaser to all thé rights of the defendant, and a subjection to all his disabilities. — R. C. § 2871. As a general rule, no question of fraud arising, or of priority under the' statutes of registration, a purchaser acquires only the estate and interest of the defendant in execution. The character or quality of the estate is as unaffected by the sale, as it would be by descent. The purchaser succeeds to the right and. title of the defendant in. execution, and this is unaltered by the succession. If it is equitable — was in the defendant in execution an equity, it remains an equity in the purchaser.' The effect of the statute subjecting an equity of redemption to sale under execution at law, is not to convert the equity into a legal estate, authorizing the purchaser to maintain or defend ejectment. If he desires to acquire the legal title, and is entitled to its conveyance, he must, as the defendant in execution would have been compelled to do, resort to equity.—You v. Flinn, 34 Ala. 415 ; Simth v. McCann, 24 How. 404.

In ejectment, or in the real action, the Code provides for the recovery of lands, or the possession thereof, the legal estate and the legal right of possession alone are involved. An equity will not support or defeat the action.—Nickles v. Haskins, 15 Ala. 619; Mitchell v. Robertson, ib. 412; Trammell v. Simmons, 17 Ala. 411; Sellers & Cook v. Hayes, ib. 749; Chapman v. Glassel, 13 Ala. 50; Collins v. Robinson, 33 Ala. 91. All that accrued to the purchaser at the sale under the execution was the equity of redemption of the defendant. This equity is unavailing at law in defense of an action for the recovery of the lands by the owner of the legal estate. It can be asserted and enforced only in equity.

The sale by the trustee Sadler, in execution of the power with which the deed clothed him, was made after the sale of the equity of redemption under execution against the grantor. That sale as effectually cut off and barred the ■equity of redemption acquired by the purchaser at sheriff’s sale, as a decree of strict foreclosure would have done. The legal and equitable estate were by'it united in the appellant, freed from the original condition, and from any other right of redemption than the statutory right.—2 Wash. Real Prop. 78; 4 Kent, 159.

The statute secured to the mortgagor the right of redemption, at any time within two years after the sale, on his paying the purchaser the purchase money, ten per cent, per annum thereon, and all other lawful 'charges. This is a mere personal right of the debtor — a.right to repurchase the lands, and to be restored to the estate he had in them at the time of the sale under the deed of trust.—Spoor v. Phillips, 27 Ala. 193; Kannon v. Pillow, 7 Humph. 281. It is not the subject of levy and sale under execution at law. It does not arise until a sale is made of the lands, under execution, decree in chancery or a mortgage, or • deed of trust. — R. C. § 2509. The sale under execution- from which appellees deduce title, was made before the sale under tbe deed of trust, and before tbe right bad au existence. Tbe right could not be asserted by the- appellees, and their offer to assert it is not a defense to tliis action.

Tbe circuit court erred in tbe charge given, and in refusing tbe charge requested. Tbe non-suit must be set aside, and tbe cause remanded.