Grandin v. Hurt , 80 Ala. 116 ( 1885 )

SOMERVILLE, J.

In order to maintain the action of ejectment, the plaintiff: must have, at the time of su.it brought, not only the legal title, but also the right of immediate possession.

As mortgagee, in the present case, he unquestionably had the legal title to the premises sued for, and would be entitled to take immediate possession, if the instrument were silent in its terms on this point. But our construction of the mortgage is, that it postpones the mortgagee’s right to take possession,' until the happening of a contingency, which is shown not to have transpired; and, for this reason, ejectment will not lie. The express stipulation in the instrument is, that the mort-' gagee would not “ institute any proceedings to, foreclose the mortgage,” until the maker and endorser of two of the notes had been sued to insolvency. This was necessary in order to establish the liability of the mortgagee, who had assigned these notes by endorsement. It is proved that this condition had not been fullfilled. We do not understand that the word “ foreclose ” is here used in any technical sense. It must be construed in its popular signification, which is, to enforce by any form of legal proceeding. The implication is clear, that the mortgagor’s possession was not to be disturbed, until the happening of the contingency provided for by the terms of the instrument. McMillan v. Otis, 74 Ala. 560.

The rulings of the court were in accordance with this construction, and were free from error ; and the judgment is affirmed.