Brunson v. Morgan , 84 Ala. 598 ( 1887 )

CLOPTON, J.

The only defense set up by Matthew Brunson is adverse possession and claim of ownership under a parol gift of the lands by his father, Matthew Brunson, Sr., in 18(55. In March, 1871, M. & S. Brunson, a firm composed of Matthew Brunson and Silas Brunson who is one of the complainants, with Matthew' Brunson, Sr., executed a mortgage, which included the land in controversy, to M. H. Amerine as trustee, to secure a note which M. & S. Brunson gave to Gary & Hudson payable October 1, 1871. Matthew Brunson, though he did not sign the mortgage, joined in making it, as is shown by his own evidence. By its terms the mortgagors covenanted and agreed that, until the note is paid, they would hold the property as tenants of the trustee. Without this stipulation, the mortgagors did not hold adversely to the mortgagees, and do not, especially when they admit in the mortgage that they are in possession as tenants of the trustee.

On January 30, 1872, the trustee sold the lands under a power of sale contained in the mortgage, and Gary & Hudson became the purchasers, but no deed to them was executed by the trustee. A foreclosure under a power of sale cut off the equity of redemption as effectually as a foreclosure by a decree of a court of equity; and the validity of the sale not having been impeached, the jrarchasers are entitled to have vested in them, whatever legal title and .estate was in the mortgagors, who acquiesced in the sale, until the bill was filed about fourteen years thereafter.

Gary & Hudson in February, 1872, sold and transferred the lands to Stoudenmire & Oo., and the trustee transferred to them the mortgage with all the rights, powers and privileges in him vested. By the sale and transfer, Stoudenmire & Oo. succeeded to all the rights and equities of the mortgagees and purchasers at the mortgage sale. By the sale and conveyance of Stoudenmire & Oo. in November, 1881, to Silas Brunson, and of Silas Brunson, in January, 1882, to Sally Morgan, one of the complainants, the latter succeeded to all the rights and equities of Silas Brunson, who succeeded to all tlie rights and equities of Stoudenmire & Co. After the sale of the lands to Stoudenmire & Co., Matthew Brunson went into possession as their tenant and. in recognition of their title. Under these circumstances, he can not avail himself of the defense of adverse possession. Not having signed the mortgage to Amerine, the legal title, if he had any, did not pass out of him thereby. The complainants .have a right to have whatever title and estate is in him divested, and for this purpose he is a necessary party.

Charles S. Lee, the other defendant, was a member of the firm of Stoudenmire & Co. The conveyance to Silas Brunson was executed in the firm name. The bill alleges, that the lands were purchased and held by them as partnership property, and that Lee received his portion of the purchase-money. By suffering a decree pro confesso' to be taken against him, he admitted the allegations of the bill. On these allegations, complainants are entitled to have whatever title and estate is in him divested, and vested in them.

Affirmed.