Sharpe v. Brantley , 123 Ala. 105 ( 1898 )

McCLELLAN, C. J.

Brantley, the defendant in the execution under which plaintiffs purchased, did not have the legal title to the land sued for but only a perfect equity, and plaintiffs, therefore, did not acquire the legal title by that purchase, but only an equitable title which will not support this statutory real action for the recovery of the land.

The action not being against the defendant in said execution, there is manifestly no room in the case for the doctrine contended for by appellants, that where “the defendant in the judgment is the tenant in possession, against whom the action is commenced, the possession is prima facie sufficient evidence’’ of title in the purchaser at execution sale. ■

We construe the paper writing of December. 9, 1886, executed by Miller to Morris, and witnessed by Ars, to be a deed. — Code, § 983; Ward v. Ward, 108 Ala. 278.

As a matter of fact this deed, under the circumstances of its execution, as .shown by uncontroverted evidence, was a satisfaction of the mortgage from Miller to Morris to which it refers; and as matter of law the mortgage was merged into and destroyed by the deed. It follows that the subsequent transfer of this defunct mortgage by Morris to Michael — the words of the transfer"not being in themselves sufficient to carry title nor capable of being construed into a conveyance of title, and the transfer not being attested or acknowledged — passed no title out of Morris and into Michael; and hence plaintiffs take nothing — at least not the legal title essential in this action — from or through Michael: He never had the legal title and, of course, could not pass it into the plaintiffs.

Plaintiffs, therefore, failed to make out their case, they failed to show title to support their action; and the trial court properly gave the affirmative charge for the defendant.

Affirmed.