Alexander v. Caldwell , 61 Ala. 543 ( 1878 )

STONE, J.

The plaintiffs in the present action assert title as follows : That on the 6th day of November, 1860, defendant executed his mortgage to Patrick, Irwin & Co.r conveying to them the lands in controversy, to secure payment of a note given to them before that time for the sum of fourteen thousand and eighty and 80-100 dollars; that afterwards, in 1868, Patrick, Irwin & Co., assigned and transferred said note and mortgage to plaintiffs; that after-wards, in September, 1868, said J. Decatur Caldwell executed a power of sale, authorizing the said Patrick, Irwin & Co. or their assignees or legal representatives to advertise and sell said lands under said mortgage, there being no power of sale in the mortgage as first executed; that under said mortgage and said power of sale, the present plaintiffs, assignees from said Patrick, Irwin & Co., and transferees of said note and mortgage, advertised, sold and conveyed said lands to one Smith, on the 14th December, 1868, and that Smith subsequently, and before this suit was brought, conveyed to plaintiffs. After the sale, which took place in December, 1868, Caldwell held the premises as tenant of Smith, the purchaser, for near two years, paying rent therefor.

The defense is, that before two years expired, viz: on December 13th, 1870, “defendant redeemed the said lands, by tendering on said 13th day of December, 1870, the said purchase-money with ten per cent, per annum thereon, and all other lawful charges to the said Albert A. Smith, the purchaser as aforesaid; and said defendant avers that by said tender, made as aforesaid by him, he was reinvested with the title to said lands.” The above is an extract from the plea of tender, and it contains no averment of a delivery of the money to the clerk of the court, or, that the money is brought into court with the plea. There was a motion to reject, and a demurrer to this plea, assigning this and various other grounds. The Circuit Court overruled the motion and the demurrer, and held the plea good, without the averment that the money was delivered to the clerk.

To authorize redemption by a debtor of lands sold as this was, the statute — Code of 1876, section 2879 — requires that he shall “pay or tender to the purchaser or his vendee, the purchase-money, with ten per cent, per annum thereon, and all other lawful charges; and such payment or tender has the effect to reinvest him with'the title.” The next section of the Code declares that “If the possession of the land has been delivered to the purchaser by the debtor, and upon payment or tender as aforesaid, it is not restored to him, he may recover possession by a suit for unlawful detainer, before a justice of the peace.” The section last copied was construed by this court in Jonsen v. Nabring, 50 Ala. 392. It was there ruled that in such action of unlawful detainer before a justice of the peace, it was not necessary to bring tbe money into court, or to aver it was so brought in; that the justice had no clerk to whom the money could be delivered, and that on appeal, the only objections to the complaint that could be made, were those which could be, and were raised before the justice. The present suit originated in the Circuit Court, is statutory ejectment, and such action, as a rule, can be maintained or defended only on a legal title. The statute declares that either payment or tender has the effect to reinvest the debtor with the title; but it can not be overlooked, that when the tendered money is, for any reason, not accepted, and no reconveyance is executed, the title in fact remains with the purchaser, while the debtor holds the money. Many circumstances may exist which will induce the purchaser honestly to decline the money tendered. He may, in good faith, deny the debtor’s right to redeem. Can it be, that the legislature intended to punish such honest mistake with a loss of the land, without a return of the money paid, of which the debtor has had the benefit? “The plea must consist of a succinct statement of the facts relied on, in bar or abatement of the suit.” — Code of 1876, § 2987. “A plea of tender of money, or of a thing in action, must be accompanied by a delivery of the money, or such thing in action, to the clerk of the court.” — Code of 1876, § 2997. The reason of the rule declared in Jonsen v. Nabring, supra, does not apply in this case. The Circuit Court has a clerk, as a necessary functionary of its very existence. Nor is the action of unlawful detainer governed by the rules which obtain in ejectment. The one is designed as a speedy, simple and statutory mode of restoring possessions tortiously interrupted, or wrongfully withheld, after the termination of a permissive, or temporary right of enjoyment. In such action title, except as implied in the statute, is immaterial, and can not be put in issue. In ejectment, title — the legal title — is generally the main inquiry.— You v. Flinn, 34 Ala. 409. The evidence of title is not always the same. Sometimes it consists in a regular chain of conveyances from the Government down to the litigant. Sometimes it consists of an older, quiet occupancy, which raises the presumption of title that will prevail against a subsequent possession without other sufficient evidence of title. — Lewis v. Goguette, 3 S. & P. 184; 1 Brick. Dig. 627, §§ 40, 41; Anderson v. Melear, 56 Ala. 621. Sometimes the action is maintained by proof that the defendant went into possession, or retained the possession, as tenant of the plaintiff, thus acknowledging his title, and estopping himself from disputing the title under which he entered, or continued to enjoy. — Henley v. Br. Bank, 16 Ala. 552. There are other modes of establishing legal title.

We think we but carry out the intention of the legislature, when we hold that the plea of tender in this cause should have been accompanied by a delivery of the money to the clerk; and, it being shown to the court that such delivery had not been made, the Circuit Court should have sustained plaintiffs’ motion to reject plea numbered two.

Whether the court rightly ruled in rejecting the copy of the mortgage offered in evidence by plaintiffs, for defects in the certificate of acknowledgment, we consider it unnecessary to decide. The certificate is very informal, and probably insufficient to raise the record to that dignity, which authorizes a certified copy of it to be used as evidence. — See Sharpe v. Orme, at the present term; Phil. Ev. ed. of 1850; Cowen & Hill’s Notes, part 2, page 462. The power of sale was sufficiently executed, if proved, to justify its admission as evidence. And the power of sale sufficiently refers to, and identifies the mortgage, to validate it and make it binding, even if, in its original execution, it was invalid. The power of sale should have been received in evidence, for the mortgage, if it ever had been invalid, had ceased to be so.— 1 Greenl. Ev. §§ 23, 211; 1 Brick. Dig. 801-2, §§ 80, 85. Whether the original mortgage can be produced, or a copy, or its contents shown, are questions to arise on another trial. Production of paper title may not, however, be necessary, if, as averred in defendant’s second plea, he held possession for the years 1869 and 1870, as tenant of Smith, the purchaser. This was a recognition that Smith had title at that time, and estops Caldwell from disputing it. This being shown, the onus is then cast on him of showing he has redeemed, according to the rules laid down above.

In the present case the plaintiffs took a non-suit with a bill of exceptions, in consequence of the adverse rulings of the Circuit Court. We have shown that the Circuit Court erred in its rulings. The usual consequence in such case is, to set aside the non-suit, and reverse and remand the cause. A point, however, not noticed in the briefs, renders such practice improper in the present case. Smith purchased at mortgage sale, December 14th, 1868, and received a conveyance of the title. Caldwell made the tender December 13th, 1870, and thenceforth renounced his tenancy, and claimed to occupy in his own right, if the averments of his second plea be true. He thus threw off allegiance to his landlord, Smith, and became an adverse holder, claiming right. In 1872, near two years afterwards, Smith conveyed the lands to Alexander and others, by whom the present suit was brought. It is thus shown that when the present plaintiffs acquired their title, the lands were in the adverse possession of Caldwell. A suit, on a title thus acquired, can not be maintained, because of its violation of the rules against maintenance. — Bernstein v. Humes, 60 Ala. 582. Such deeds are not void, but are binding, by way of estoppel, between the parties. — Ib. 60 Ala 604. Inasmuch as the present suit in the names of the present plaintiffs can not be maintained, the erroneous rulings of the Circuit Court were error without injury,

Judgment of non-suit affirmed.