Lomb v. Pioneer Saving's & Loan Co. , 106 Ala. 591 ( 1894 )

BRICKELL, C. J.

— The statutes confer on a party suing for the recovery of lands, or for the possession thereof, the right to elect either of the two remedies they provide-; — an action of ejectment, or an action in the nature of an action of ejectment. The substance of the complaint in the latter form of action is prescribed, and in effect it is an action of ejectment stripped of the forms and fictions which were at common law the characteristics of that form of action. — Code, §§ 2695-96. And it is declared that “the general issue in an action in the nature of an action of ejectment is ‘not guilty, ’ and under it the defendant may give in evidence the same matter which may be given in evidence under such plea in an action of ejectment:” — Code, § 2698. The scope and extent of the plea of “not guilty” in an action of ejectment is well defined. It casts upon the plaintiff the burden of proving .a legal right to the possession of the premises in dispute, and of consequence, whatever operates a bar to his right of Doss.essi.on,causes him: t.o> fail, entitling the defendant to a verdict. Unless it be of matter puis darrein continuance, the defendant may not plead any other plea ; it is unnecessary and is foreign to the nature of the action. — Bynum v. Gold, ante, p. 427; Tillinghast Adams Ejectment, § 70; Tyler on Ejectments, 464. If the matter of the special pleas to which demurrers were, sustained be available as a defense, it was available under the general issue, and these pleas could well have been stricken from the file as inappropriate and immaterial. There is a dictum, seemingly to the contrary in Slaughter v. Swift, 67 Ala. 494, resulting from the inadvertence of not distinguishing between the scope and effect of the general issue in this form of action, and the scope and effect of the general issue in other civil actions. The real question in that case was, whether in an action of ejectment by-a mortgagee, the action could be defeated on evidence of payment of the mortgage debt, and it was decided that such defense was unavailing. Since the statute, (Code, § 2707), has authorized the mortgagor, or any one holding under him, to plead payment of the mortgage debt, or performance of the condition of the mortgage, in bar of an action by a mortgagee, or his assignee, for "the recovery of the mortgage premises, it may be, that now, payment of the mortgage debt, or performance of the condition, may be pleaded specially. If that be true, the plea of the performance of the condition of the mortgage the defendant interposed, was too vague and indefinite, and of consequence demurrable.

There was objection to the introduction in evidence of the mortgage and the promissory note, payment of which it was intended to secure, which seems to have been, founded on the fact that the plaintiff was not, eo nomine, the grantee of the mortgage and the payee of the note. It was competent for the plaintiff to prove that it was the identical corporation, existing under the present name, to which the mortgage was executed, and the note made payable — in other words, that there was a mere change of the coi’porate xiame ; and the proof when made deprived the objection of all force. Chaxiges of name by corporatkms are not infrequent, and have no more of effect upon the identity of the corporation, than a change of name by a natural person has upon his identity; it affects no rights, nor does it lessen or add to obligations and duties. If in the act of incorporation, proceeding from the law making power, a particular name is given, there cannot be a legal change of it without the assent of that power. Third persons contracting with the corporation -have no rights or interests involved in the change, and cannot inquire into, or collaterally assail the mode of procedure by which it may have been effected. Legislation authorizing the change belongs to that class of legislation which has uniformly been recognized as valid, for the reason that it affects no rights of those who deal with the corporation ; does not change the relations of the shareholders to each other or to the corporation, and does not impair the corporate franchises. 1 Morawetz, § 354; Ang. & Ames, Corp., § 102. In the present case, the change seems to have been effected in strict accordance with the laws of Minnesota, from which corporate existence was derived, and in the change the corporation and the State have acquiesced. It is not for parties who have contracted with the corporation to avoid their contracts by any complaints of the mode of procedure by which the change was effected. When to the plaintiff satisfaction of the liability of the defendant is made, the satisfaction will be as full and complete, of all the legal efficacy which would have attached, as if the change of name had not been made.

There is no force in the contention that the note and mortgage are void because the word “National” formed part of the original corporate name of the plaintiff. The law supposed to be offended is section 5243 of the Revised Statutes of the United States forming part of the “National Banking Law.” It prohibits under a penalty, all banking corporations not organized and transacting business under the law, and all persons or corporations doing the business of bankers, brokers, or savings institutions, except savings banks authorized by Congress, from the use of the word “National” as part of their corporate name, or as a portion of the title of such bank, corporation, firm or partnership Whether a transaction or a contract is in contravention of a statute, is at all times, manifestly, matter of construction. We incline to the opinion that it would necessitate a latitudinous construction of this statute to visit invalidity upon contracts made by or with corporations within the scope of their corporate powers, contravening its prohibition by the use of the word “National. ” But that question need not be decided. The plaintiff is essentially a corporation of the class known as “Building & Loan Associations,” haying its own peculiar functions, powers and franchises, distinguishable from the functions, powers and franchises of the corporations referred to in the statute, nor is it engaged in the transaction of the business against the transaction of which, under the use of the word “National” as part of a corporate name, the statute is directed.

Mortgages of land have long been recognized in this State as of a dual character — a conveyance of an estate inlands, and asa security for the payment of a debt, or for the performance of an obligation or a duty ; bearing one character in a court of law, and another in a court of equity. At law it is a conveyance of an estate in lands— a fee simple, unless otherwise expressly limited. The estate in its origin and inception is conditional; annexed to the fee is a condition which may defeat it. The mortgagee, if there be not in the conveyance a reservation of the possession to the mortgagor until default in the performance of the condition, has the immediate right of entry, and may eject the mortgagor or his tenants. — Duval v. McLoskey, 1 Ala. 737. After default in the performance of the condition expressed in the mortgage, at law the estate is absolutely vested in the mortgagee — the fee if freed from the condition annexed to it. Before default, there remains in the mortgagor the right to perform the condition thereby restoring his original estate. After default, there continues to him the equity of redemption, of which, as between mortgagor and mortgagee, courts of law cannot take cognizance or notice. — Paulling v. Barron, 32 Ala. 11; Baker v. Bell, 37 Ala. 258 ; Welsh v. Phillips, 54 Ala. 309.

In an action of ejectment, or in the corresponding statutory real action, the legal title only is involved. The plaintiff can recover only on a superior legal title — the defendant can defeat a recovery only by legal defenses — ■ the equities of the parties cannot be asserted or regarded. Mitchell v. Robertson, 15 Ala. 412; Nickles v. Haskin, Ib. 619 ; McPherson v. Walters, 16 Ala. 714 ; You v. Flinn, 34 Ala. 409; 3 Brick. Dig. 325, §§ 33-34. The mortgage passed the legal estate to the plaintiff, subject to be defeated by the performance of the condition in the manner and at the time appointed. The failure to perforan the condition, freed the estate from its defeasible quality, vesting the estate in the plaintiff absolutely. In a court at law there can be no inquiry beyond the legal title. A want of consideration for the mortgage debt, or a failure of the consideration, or usury infecting it, are matters cognizable only in a court of equity, which can mould and adj ust its decrees to meet the rights and interests of the parties. That court may, if right and justice require it, direct the cancellation of the mortgage, removing it as a muniment of title, or compel a reconveyance, and it can compel the mortgagor to a restoration of whatever was received as the consideration of the mortgage. If there be any force in the contentions of appellant to which we have not averted specially, they are of equitable cognizance exclusively, and have no pertinency or relevancy in this action. — Kelly v. Mobile B. & L. Association, 64 Ala. 501.

We do not deem it necessary to pass up'on the numerous objections to testimony with which the bill of exceptions abounds. The mortgage aDd its execution and the making of the note it was intended to secure were undisputed, and the breach of the condition was shown by evidence which was not subject to objection. These facts required the rendition of the judgment which was rendered, and upon them, and not upon other evidence which may have been objectionable, it must be presumed the court proceeded.

We find no error in the record, and the judgment must be affirmed.