Woodward v. Parsons , 59 Ala. 625 ( 1877 )

BRICKELL, C. J.—

This was a real action under the Code, for the recovery of the possession of a tract of land, in which the appellee was plaintiff. Each party deduced title from Jonathan L. Elston. The appellee claiming under a mortgage, executed on the 11th day of June, 1867. The appellants claiming under a sheriff’s sale, made under executions against Elston, coming to the hands of the sheriff after, but founded on judgments rendered prior to the execution of the mortgage. The court, at the request of the appellee, gave its chaz’ge to the jury in writing, to which general exception was reserved.

In support of this exception, and as showing the charge as an entirety is erroneous, the appellants insist on two propositions : first, that under the statutes existing at the rendition of the judgments, a lien was attached to the judgments, which being prior in point of time, has precedence of the mortgage; the second, that under the mortgage, the appellee was not entitled to the possession of the the premises—that possession of right remained to the mortgagor, until the power of sale in the mortgage had been executed.

The first proposition has been settled adversely to the appellants, by the decision in Dane v. McArthur.—57 Ala. 448. The statutes do not attach a lien to judgments. A lien is acquired only by a delivery of an execution to the sheriff, and extends only to property real and personal, subject to execution, situated within the county of the sheriff.

Nor can the second proposition be maintained. The consideration of the mortgage, is the security of debts past due, at the time of its execution. It confers on the mortgagee, the power to sell at any time he may think proper, on-giving thirty days notice. In reference to the possession it is silent; there is no stipulation that the mortgagor shall remain in possession until the power is exercised. A mortgage, like other conveyances, deriving operation from our statute of uses, operates an immediate transfer of possession and the right of possession from the mortgagor to the mortgagee, in the absence of an express stipulation, or of necessary implication, that the mortgagor shall remain in possession ; and the mortgagee may at any time enter and take possession, or recover it in ejectment.—4 Kent, 183; 2 "Wash. Real Prop. 38 (marg. 476); Duval v. McLoskey, 1 Ala. 729. Under what circumstances an implication maybe-made, of a right in the mortgagor to remain in possession, fit is not now necessary to consider. It cannot be made, when the mortgage debt has passed maturity, and the possession of the mortgagor, or of his assignee, would hinder and embarrass the mortgagee in the exercise of the power of sale, with which the mortgage clothes him.

There were seventeen instructions given at the request of the appellee, to each of which an exception was reserved. We have carefully examined these instructions, and though some of them are not clearly expressed, we can not affirm ■that they assert incorrect propositions, or that their immediate tendency was to mislead the jury. The counsel for the appellant has assailed more particularly the seventeenth instruction. But we think fairly construed, it simply asserts, that the fraudulent intent of the grantor in which the creditor did not participate, would not vitiate the mortgage-The judgment must be affirmed.