Jones v. Roper , 86 Ala. 210 ( 1888 )

SOMERVILLE, J.

The defendants are shown to hold the land, for the recovery of which the suit is brought, by privity of title with Wilkinson. If Wilkinson, therefore, could not have been ejected by reason of the superiority of his title, neither can the defendants.

Wilkinson’s title was clearly good against the plaintiff, by virtue of the mortgage executed to him by the plaintiff and her deceased husband, Jerry Boper, bearing date April 5th, 1873, and duly attested and probated. The mortgage being executed prior to the statute of April 23, 1873, and the wife having joined in the execution of the conveyance, and it being attested and probated in the form prescribed by statute for ordinary conveyances, the requirements of the constitution of 1868 were fully satisfied as to the wife’s voluntary signature and assent to the alienation of the homestead. The mortgage, therefore, conveyed the land upon which the homestead was situated, without any examination of the wife separate and apart from her husband, certified to as required by the act of April 23, 1873. — Code of 1876, § 2822; Code of 1886, § 2508, and cases there cited; Cahall v. Citizens Mut. Building Asso., 61 Ala. 232; Miller v. Marx, 55 Ala. 322; Lyons v. Conner, 57 Ala. 181; 3 Brick. Dig. p. 497, § 113, and cases cited. A mortgagor can not recover in ejectment against a mortgagee who is in adverse possession after the law-day of the mortgage. No more can one who claims under the mortgagor recover against one holding by privity of title with the mortgagee, unless the conveyance is void.

Conceding that the other mortgages, sought to be introduced in evidence by the defendant, were properly ruled out, the defendants were nevertheless entitled to a recovery, under the title conveyed to Wilkinson by the mortgage of Boper and wife, executed April 5th, 1873.

The court erred iu giving the general affirmative charge to find for the plaintiff if the jury believed the evidence, The defendants would have been entitled to such a charge, had it been properly requested.

Reversed and remanded.