State v. Conner , 69 Ala. 212 ( 1881 )

STONE, J.

When a mortgagor, after the execution of the mortgage, makes sale of the mortgaged premises to a third person, who has notice, actual or constructive, of the prior mortgage, the presumption is that he sells only the interest remaining in Mm, wMch is an equity of redemption. And, as the mortgagor does not hold adversely, but in subordination to the title of the mortgagee, the presumption is that the alienee of the mortgagor holds in the same right, and asserts no higher, or independent title. So, if such transaction be left to its own legal intendments, the presumption is that the alienee, like his vendor, holds in recognition of, and subordination to the prior and paramount title of the mortgagee. This, without more, is not an adverse holding, which will ripen into a title at the end of ten years of continued occupation. To convert such possession into an adverse holding, there must be a renunciation or •disclaimer of the mortgagee’s right, and that renunciation must be traced to his knowledge. Till that is done, such possession is not regarded as adverse. — Foster v. Goree, 5 Ala. 424; Herbert v. Hanrick, 16 Ala. 581; Boyd v. Beck, 29 Ala. 703; Byrd v. McDaniel, 33 Ala. 18; Coyle v. Wilkins, 57 Ala. 108.

. The rule of decision is different, however, when lands are sold, or contracted to be sold, by executory agreement, and no title is made to the purchaser. In such case, if the purchaser be in possession, he holds, and can hold only as a tenant at sufferance to the vendor, and may be evicted at his will and ■pleasure.

The two titles or claims, noticed above, are in many respects dissimilar. Each claimant, it is true, is in some respects the owner of a mere equitable claim, but the equities,are of differ-ent characters. The mortgagor’s equity consists in the right to redeem; but when the mortgage debt is paid, and satisfaction entered on the record of the mortgage, the legal title, without any re-conveyance,"re-vests eo instanti in the mortgagor. So, if the mortgagor sell and convey the premises by deed with covenants of warranty, express or implied, and afterwards pay the mortgage debt, and have satisfaction entered of record, the legal title would by that very act, without re-conveyance, vest in his grantee. — Abraham v. Chapman, 61 Ala. 108. In fact, .as to all the world except the mortgagee, the mortgagor is treated as the owner of the lands. — Jones on Mortgages, § 11. So, the mortgagor has a valuable interest in the land, which he can sell and convey.- With a purchaser, holding an obligation to make title, say, when the purchase-money is paid, the status of the title is entirely different. He is not the legal owner as against any one, and strictly has no title, legal or equitable, which he can sell and convey. He has an obligation for title when certain conditions are performed; and when he does fulfil those conditions, he will have an equity; but not an equity which will become a legal title, when the condition is performed. Never having had title, it requires a conveyance or its equivalent to vest a title in him. True, while the agreement remains executory, he may transfer his rights under the contract, by assigning the obligation to make title. And a conveyance of the land by such purchaser, although inoperative as a conveyance of title, would, in equity, transfer to the grantee the same equitable rights, as an assignment of the title bond would convey ; a right to perform the condition precedent, and thus perfect an equitable claim to demand a title. But, as á transfer of title, a conveyance made by such executory purchaser would Vest no title in the grantee, for -the obvious reason that such grantor would have no title to convey. A bond to make title not only fails to convey title, but it confers no power to acquire a title by any process known to legal forums. The only redress law courts can administer in such' cases, is to award pecuniary damages for the breach of the condition of the bond.

The effect of these ascertained principles is, that one who acquires posssession under a conveyance from an executory purchaser takes it under title simply colorable, and, in fact, acquires no title whatever. Such holding, not being in subordination to the true title, but in disregard of it, we have held that it is independent and adverse; and if permitted to continue ten years, it ripens into a title which will defeat or maintain an action of ejectment. — Miller v. The State, 38 Ala. 600; Tayloe v. Dugger, 66 Ala. 444.

There is a line of decisions invoked in this case, which rest on impregnable grounds, but relate to an entirely different principle. "We refer to the defense of tona fide purchase without notice. It is very true, if Mrs. Conner’s defense rested on that ground, she has entirely failed to make it good. To maintain such defense, the purchaser must not only show a conveyance to himself, but he must go farther and prove that his grantor was seized of a legal title, superior to that shown by plaintiff. And he is charged with notice of every defect, which an examination of his vendor’s chain of title would disclose. If, as is claimed in this case, title never passed out of the State to White, the first purchaser, an examination of Whitsett’s chain of title would have' disclosed the absence of this first, and most important link in the chain. This would have invalidated her title, and would have been fatal to her plea of tona fide purchase. — Bradford v. Harper, 25 Ala. 337; 2 Brick. Dig. 520, § 184; Coyle v. Wilkins, supra. But the defense does not rest on a ton a fide purchase without notice. If it did, and were made out, the defendant would not require the aid of the statute of limitations. That defense does not depend nor rely on original sufficiency of title. It relies on no documentary title whatever,, and impliedly concedes that the possession had its inception not in right, but in wrong. The gist of it is, that the defendant and those under whom he claims, have held continuous adverse, or independent possession for ten years next before tbe suit'was brought. — Collins v. Johnson, 57 Ala. 304.

Tbe Circuit Court did not err in refusing tbe charges ashed.

Affirmed.