Lester v. Walker , 172 Ala. 104 ( 1911 )

McCLELLAN, j.

In the absence of misrepresentation, fraud, or deceit, tbe execution of an instrument by one who can read and write is binding upon him, even though be did not read it, or was ignorant of its contents .-Bank of Guntersville v. Webb & Butler, 108 Ala. 132, 19 South. 14.

An assignment and transfer of evidence of debt, so as to entitle tbe assignee or transferee to tbe “money thus secured,” effects to clothe tbe assignee or transferee with tbe mortgagee’s power of sale, created by tbe mortgage, notwithstanding tbe terms of tbe written assignment or transfer are inefficient to carry tbe legal title to tbe real estate covered by tbe mortgage. — Ward v. Ward, 108 Ala. 278, 19 South. 354.

Tbe execution of su'cb a power by tbe assignee or transferee will pass the title to tbe purchaser at tbe sale. — Martinez v. Lindsey & Gay, 91 Ala. 334, 8 South. 787; Johnson v. Beard, 93 Ala. 96, 9 South. 535; Ward v. Ward, supra. Tbe decision in Langley v. Andrews, 132 Ala. 147, 31 South. 469, is in no sense opposed to tbe doctrine of tbe cases just cited. Tbe sole ruling in that decision was that S. M. Inman & Co., tbe assignors and transferrors of J. E. Andrews, tbe complainant, were necessary parties to the bill of Andrews to foreclose tbe mortgage, and so on tbe theory that tbe assignment did not contain apt words of conveyance of the realty described in tbe mortgage. The doctrine of tbe two lines of decision are entirely distinct. The one, tbe former, involves tbe exercise of a power and its transmutation; while .the other involves a matter of practice, in equity, looking to jurisdiction adequate for the investment of the purchaser with the legal title to the property covered by the mortgage which is sought to be foreclosed.

The assumption of possession of lands by a vendee, though his deed be not recorded, is sufficient to put a purchaser or creditor on inquiry which would lead to a knowledge of the conveyance, and such possession is equivalent to registration of his conveyance or to actual notice. — King v. Paulk, 85 Ala. 186, 4 South. 825, and cases therein cited; Griffin v. Hall & Farley, 129 Ala. 289, 29 South. 783. The application of these principles to the status of fact shown by this record leaves no room for doubt that the trial court correctly gave the affirmative charge for the defendant.

There was no evidence of misrepresentation, fraud, or deceit whereby Osborne’s execution of the assignment, offered and properly received in evidence, might be avoided. Under the assignmnt by Osborne, Walker was clothed with the right to exercise the power of sale contained in the mortgage. The actual, visible possession of the lots by Ryan, or of his tenant, was such notice as forbade plaintiff, or his predecessors in asserted right, being bona fide purchasers without notice.

The judgment must be affirmed.

Affirmed.

Dowdell, O. J., and Simpson and Somerville, J.J., - concur.