Probst v. Bush , 115 Ala. 495 ( 1896 )

McCLELLAN, J.

This case may be thus stated: A, being in the adverse possession of land, B, who claimed title, executed to C. a mortgage on the land. C. had the land sold under a decree foreclosing the mortgage to which A. was not a party. D. became the purchaser at that sale and received a conveyance from the register in accordance with the decree. He now prosecutes this-suit against A. for the recovery of the land. A.’s defense is that the mortgage from B. to C. was void because the land was adversely held by him, A., when the mortgage was executed, and has continued to be so held. D.’s replication is that the mortgage was foreclosed by decree in chancery on bill filed by C. against B., and that he purchased at the foreclosure sale and took a conveyance from the' register in pursuance of said decree. The plea was good : The doctrine that conveyances of lands which are in the adverse possession of .third persons are champertous, is firmly established in this State, and not questioned in this case. The replication is bad. It confesses but does not avoid the plea. The mortgage itself was a necessary link in plaintiff’s title. The mortgage was a nullity as against the defendant. The effect of the decree was merely to foreclose B.’s equity to redeem the mortgage, and a sale under the decree vested in the purchaser only the title of the mortgagee freed from this equity. The mortgagee having no title as against the defendant, none passed by the sale, or now exists in the purchaser. The exception to the rule — that lands adversely held cannot be alienated — which has reference to alienation through judicial sales, is as firmly established as the rule itself. But it has no application to this case. Not that the sale under the foreclosure decree is not a judicial sale, for of course it is ; but that nothing passed to the plaintiff by the judicial sale here made against the defendant, because nothing passed out of B. by the mortgage to C. as against the defendant. Had the possession of the land been in the mortgagor when the mortgage was executed, the judicial sale would have carried title into the plaintiff, although the defendant was in adverse possession at the time of the decree and sale ; and this illustrates the operation of the exception to the rule in favor of such sales ; but the possession being in the defendant when the mortgage was executed, and the mortgage in consequence being void as to him, it was not validated by the decree of foreclosure, but constitutes now, as well as before' the foreclosure sale, a missing link in the chain of title essential to plaintiff’s right to recover.

The trial court should have given the affirmative charge for defendant, and refused that asked by plaintiff.. Recognizing the error into which it had fallen, by giving the latter and refusing the former instruction, on the motion for a new trial, it very properly granted said motion.

Affirmed.