Lang v. Stansel , 106 Ala. 389 ( 1894 )

BRIOKELL, C. J.

— The material question, decisive of the substantial right of the parties, is, whether the appellee acquired the legal estate in the lands in controversy, by his purchase at the sale made by Hinton, and the conveyance from Hinton purporting to pass it. If he acquired an equity only, the present action can not be supported. Ejectment, or the corresponding statutory real action, can be maintained only upon a legal title, entitling the plaintiff to immediate possession. The nature, character and extent of the estate or interest the appellee acquired, depends upon the construction of the deed by which Blanton conveyed the lands to Mrs. Lang. The deed is not an ordinary technical mortgage or deed of trust, for these grant and convey the legal estate to the mortgagee, or trustee, and the trusts or conditions which may be attached are appurtenances or appendages to the legal estate. But mortgages or deeds of trust proper are not the only forms or kinds of security, for the payment of debts or performance of duties. These are various, matters of contract or convention, and generally, there is no difficulty in a court of equity in establishing a lien or trust on real or personal property, whenever that is the matter of agreement, as against the party himself, and third persons, who are volunteers, or have notice. And it is the substance, not the mere form of the agreement, which the court regards, and the construction which will prevail is that which is best adapted to further and effect the intention of the parties. — 2 Story Equity, §§ 791, 1231. Take as an illustration, the not infrequent case of a vendor conveying the legal estate in lands to the vendee, and on the face of the conveyance declaring or reserving aliento secure the payment of the purchase money. The declaration or reservation does not intercept the passage of the legal estate to the vendee; that'passes, but it is burdened with a lien or trust for the payment of the purchase money, a court of equity will enforce, and which follows and binds the land. The trust or lien appearing on the face of the conveyance, all who succeed to the estate, whether as volunteers or purchasers for value, are charged with notice of it, and take in subordination to it. The transaction is often termed, not inaptly, an equitable mortgage, because if there be default in the payment of the debt, it is only by a decree of a court of equity that the trust or lien can be enforced.

The grantor, Blanton, had become liable for the debt of the husband of Mrs. Lang, created by his default ns administrator of Alberta Lang, deceased. The payment of the debt formed the consideration of the conveyance, and a trust for its payment was declared. If these were all the terms of conveyance, it would bear a close resemblance to a conveyance by a vendor reserving or declaring a trust or lien for the payment of the purchase money, and the trust or lien would be capable of enforcement only by a decree of a court of equity. But by the conveyance it is expressly covenanted that the trust may be enforced by a sale under the conveyance as in cases of foreclosing mortgages under the statute, or by bill in chancery to foreclose. There is no statute regulating the foreclosure of mortgages by sale, but it is manifest the parties had in contemplation a sale, anda sale under the conveyance, and these words indicate that it was a public, not a private sale, which was contemplated; and from them, it is a just and reasonable inference, that it was a public sale, conducted as public sales under judicial process, or the decree of courts, regulated by the statutes, with which they were familiar, to which they referred. The words cannot be i ejected as useless and unmeaning ; some effect must be given them, and in giving them this operation, a construction is adopted, which advances and gives effect to the intention the parties have manifested. The sale could have been effected by a bill in equitj' to foreclose, but it rested in the election of the parties having the right to receive payment of the mortgage debt to pursue that remedy, or the speedier, more inexpensive remedy of a sale under the power which was reserved. The election was matter of right with them, not of right in the grantee. — 2 Jones Mort., § 1773. The conveyance does not nominate or appoint the person by whom the sale under the power should be made. But it is expressly stipulated that on default in the payment of the debt, the trust should bo executed by some suitable person to be appointed in writing by any person interested in the trust fund. The trust to be executed, was the trust raised and declared in the preceding parts of the conveyance, and which declared the mode of its execution or enforcement; and the trust fund referred to is the debt, payment of which was charged on the lands. The relation of the parties was strictly and purely contractual ; there was no preexisting relation between them which requires that matters of agreement into which they may have entered, shall be jealously scrutinized, or narrowly or strictly construed, to prevent fraud or oppression being practiced or imposed, the one upon the other. Upon what terms or conditions the grantor would part with the legal estate in the lands, was with him matter of mere volition; and the acceptance of the grant burdened with these terms and conditions, rested in the volition of the grantee. And as the purpose was security of the payment of a just debt, to create a fund for its payment, a liberal construction of the conveyance must prevail. The mode and by whom the trust should be executed, was wholly matter of convention and contract between the parties, not of law, or jurisdiction. If they had so elected, they could have nominated and appointed the person to execute the trust in the conveyance, as they prescribed the mode of execution. And it was within their capacity to commit the nomination and appointment, as they have done, to any party interested in the trust fund, postponing the nomination and appointment until there was default in the payment of the debt, the event upon which a sale could be made. When the default occurred, and the appointment was made, the person ■ appointed was clothed with the power to sell, and though the conveyance is silent as to the execution by him of a conveyance, the power to convey is manifestly included in the power to sell; otherwise the sale would be incomplete, and the trust but partially executed. The legal title is not passed to him by his appointment; that remains in the grantee. But the conveyance by which she acquired it, subjects it to the exercise of the power of sale, and when it is exercised, the title vests in the purchaser, as effectually as if by deed she conveyed it. — Moore v. Lackey, 53 Miss. 85.

The conveyance from Hinton to the appellee, recites his appointment by parties standing in the relation of next of kin of Alberta Lang, or the legal representatives of such parties, refers to the appointment, as of record in the court of probate', the default in the payment of the debt secured, the sale of the lands which was advertised and conducted, as sales under judicial process are required to be advertised and conducted by sheriffs, and that the appellee became the purchaser, and had paid the purchase money. These recitals must be accepted as true prima facie, and of them there does not seem to have been controversy or dispute on the trial in the court below. The conveyance passed the legal estate in the lands to the appellee, and the court below properly instructed the jury, that if they believed the evidence, he was entitled to recover.

Affirmed.