Holtzclaw v. Miley , 172 Ala. 15 ( 1911 )

MAYFIELD, J.

This was a statutory action, in the nature of ejectment, by appellants against appellee. Defendant claimed title by virtue of a mortgage from George Holtzclaw, who was the husband of Pinkie, and father of the other plaintiffs, and also by virtue of a mortgage executed by Pinkie, the widow, after the death of the husband and father. The trial resulted in verdict and judgment for defendant. The plaintiffs also claimed title through the deceased husband and father, George Holtzclaw.

There are but three assignments of error. The first two are to the introduction in evidence of the two mortgages above referred to, and the third is to the refusal of the court to give the affirmative charge for the plaintiffs. One of these mortgages was executed by George Holtzclaw and wife, Pinkie, one of the plaintiffs in this suit, to “Lull & Lacy,” and was transferred and assigned by that firm to the defendant. The- other was executed after the death of George, by Pinkie Holtzclaw to the defendant. Both of these mortgages were past due; and, the law day having arrived, the mortgagees or those claiming under them were entitled to the possession, and, of course, the legal title passed to the mortgagees, if the mortgages were valid.

The validity of the first mortgage was not denied, but it was claimed by the plaintiffs that it had been paid. The plaintiffs dénied the execution of the second; but there was proof of the execution thereof by both of the attesting witnesses, which authorized its introduction in evidence. The execution of the other instrument was properly proven; but the introduction of it in evidence was objected to, because there was not a sufficient transfer or assignment thereof by Lull & Lacy, to pass the legal title to the lands embraced therein. It is unnecesessary to pass upon the question as to whether this assignment did pass the legal title or not.

The mortgage, under the facts in this case, was admissible in evidence, whether it passed the legal title or not. The defendant was claiming under the mortgagees, and they could assert the legal title of the latter, if the title was still in them, to defeat this action of ejectment. It follows that the court did not err in admitting either of the deeds in evidence.

The general affirmative charge could, not properly be given for the plaintiffs in this action. It was a disputed question of fact as to whether or not the first mortgage had been paid, which was the only thing on which the plaintiffs could have recovered, under any phase of the evidence.

Affrmed.

Anderson, Sayre, and Somerville, JJ., concur.