Garren v. Fields , 131 Ala. 304 ( 1901 )

HARALSON, J.

It is familiar, that a mortgagor does not hold adversely, but in subordination to the title of the mortgagee, and an alienee of the mortgagor holds in the same right, and can assert no higher or independent title — The State v. Conner, 69 Ala. 212. The plaintiff contends, under this principle, that the defendant must be regarded as holding under his vendor, A. J. Garren, — the mortgagor of the Louisville & Nashville R. R. Co., — and in subordination to the mortgage by him to said company; that the possession of the land by defendant, claiming title through that company, was the possession of said Railroad Company, and such status continued, until, actual notice of his adverse claim was given by him to some of the vendees of said company claiming title through it. In other words, it is urged, that, as it was not shown that the Louisville & Nashville Railroad Co., — the mortgagee of defendants’ vendor, — or the Alabama Land Company, — the immediate vendee of said Railroad Company, — or the plaintiff, Fields, the vendee of said Land Company, had any knowledge or notice, that defendant was holding adversely, the defendant was not in position to set up adverse possession as a defense to the plaintiff Is action. Admitting, as we may for the purposes in hand, that this contention is well founded in any case, yet it cannot be invoked, except where the mortgage still exists and belongs to the original mortgagee or those claiming under him by assignment of the same. But here, the original mortgagee, the L. & N. JR. R. Co., duly and legally foreclosed its mortgage, and afterwards, having purchased the land under foreclosure sale and received a conveyance of it, sold and conveyed the same with warranty of title, to the Alabama Land Company, the plaintiff’s vendor. Said mortgage by its foreclosure became functus, and no longer existed as a security for a debt, and the conveyance, afterwards, by the mortgagee to said Land Company, was not in any sense a mere assignment of the mortgage, but a conveyance of the legal title to the land. After this, said mortgage no longer remained a factor of defendant’s alleged adverse possession, and the period from which such possession L to be estimated, must be ascertained without.reference to it. — Williamson v. Mayer, 117 Ala. 253, 260, 261.

As appears, the evidence, as to the validity of defendant’s adverse possession, was directly in conflict with the plaintiff’s evidence, leaving no place for the general charge given for the plaintiff. The question, under proper instructions from the court, should have been left to the determination of the jury.

Reversed and remanded.