Gay v. Fleming , 182 Ala. 511 ( 1913 )

ANDERSON, J.

As Ave Anew this, case there is but one controvertible question to submit to the jury. If the plaintiff’s father, a married man, lived on the land when he made the mortgage to H. J. Savage, it was a nullity as to the 160 acres iioav claimed as the homestead, and no subsequent abandonment of the said homesteacl imparted validity to the mortgage as a conveyance of same, and, unless the defendants acquired title by adverse possession, the plaintiff was entitled to recover, and the record fails to disclose 10 years continuous adverse possession.

On the other hand, if the land was not the homestead when Gay executed the mortgage to H. J. Savage in 1889, it operated to get the legal title out of Gay into the said Savage, notwithstanding the same was not signed and separately acknowledged by the wife of the said Gay, and the plaintiff could not recover whether the foreclosure proceedings were or were not regular. “A mortgage, void as to the homestead, because not legally executed by the wife of mortgagor, is insufficient, after foreclosure sale thereunder, to support an action of ejectment by the purchaser, though such homestead had not been selected at date of the mortgage nor at that of sale.” — Marks v. Wilson, 115 Ala. 561, 22 South. 134. Such a mortgage or other alienation of the homestead is invalid for any purpose. — Slappy v. Hanners, 137 Ala. 199, 33 South. 900; Henderson v. Kirkland, 127 Ala. 185, South. 674. Nor did the subsequent abandonment of the homestead render such a void conveyance valid. — Alford v. Lehman, 76 Ala. 526.

So, also, notwithstanding the mortgage contained over 160 acres, the mortgagee took with notice and risk of what the husband or his heirs might select. — McGuire v. Van Pelt, 55 Ala. 345. There being a sharp conflict in the evidence as to whether or not the mortgagor Gay lived on the land when he executed the mortgage to Savage, the trial court properly refused the plaintiff’s requested general charge.

If parties allow 20 years to elapse without taking any steps to compel the settlement of a mortgage debt, or to assert rights of property, the presumption of payment or settlement of the disputed, title arises. — Goodwyn v. Baldwin, 59 Ala. 127; Bailey v. Butler, 138 Ala. 153, 35 South. 111.

There ivas no such presumption, however, in the case at bar, as the mortgagee took steps to foreclose the mortgage within a few years, and his heirs were in possession of the land for several years before the expiration of the 20 years. Whether the deed from Wilson back to the mortgagee Savage was signed or not, the defendants had the right to show the whole foreclosure proceedings and possession thereafter to refute any presumption of payment after the lapse of 20 years. Moreover, the defendants could defeat the plaintiff’s right to recover if the mortgage was valid as to* the land, whether the foreclosure was regular or not, as said mortgagee got the title out of Gay and the plaintiff, as his heirs, would not have any title to the land.

Charge 1, given for the defendants, should have been refused. If not otherwise faulty, it failed to fix the termination of the adverse possession at or prior to the commencement of the suit, and said omission may have been highly prejudicial to the plaintiff. For instance, the defendants showed adverse possession for not quite 10 years before the suit was brought, yet the possession commenced over 10 years before the case was tried, and under charge 1 the jury could and may have included the time between bringing the suit and the trial as a part of the 10 years.

Charge A, given for the defendants, can well be refused on the next trial, for whether its being given would be error to reverse we need not decide, as the case must be reversed for other reasons. It is sufficient to say that said charge was abstract and misleading as the right of Gay to claim a homestead in Alabama or Florida after he executed the mortgage had nothing to do with the case. The question was whether or not the land included his homestead when he made the mortgage and before he moved to Florida. If it did, the mortgage was invalid as to the homestead, and a subsequent abandonment of the homestead or the acquirement of one in Florida did not impart validity to the mortgage or preclude him, his heirs, or assigns from asserting the invalidity of said mortgage.

The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.