Leech et al. v. Karthaus et al.

Leech et al. v. Karthaus et al. Statutory action of Ejectment.' 1. Ejectment; what necessary for 'plaintiff to recover. — In an action of ejectment, where the plaintiff and the defendant do not . claim title from a common source, in order for the plaintiff to recover, it is necessary for him to show possession of the property sued for prior to that of the defendant, or that he claims through one who had held title or possession prior to defendant. 2. Proof of title through trust deed,' mere recitals of subsequent instrument insufficient to show death, of trustee. — Where among the many conveyances, through which a party claims title, there is a trust deed, which contains a power authorizing the cestui que trust or debtor in case of the trustee’s death, to substitute, another trustee in place of the one named in the deed, and such named trustee dies and the title is conveyed by a -substituted trustee, it is necessary in order to establish said title to prove the death of the original trustee; and the mere recial in the subsequent conveyance that the original trustee had died is not sufficient. 3. Same; conveyance must be made by trustee. — Where a trust deed executed to secure a debt, gives the trustee power to sell for payment of the debt after default, a subsequent deed by the grantor in said trust deed to the debtor- who is named as cestui que trust in said deed, is insufficient to pass the legal title to such debtor; since, in order to pass such title, the trustee should join in such conveyance, or execute a separate conveyance. 4. Deed; certificate of acknowledgment. — A certificate of acknowledgment attached to a deed, which, after setting out the state and county, recites “I, W. S. Wells, Jr.,’ in and for said state and county, hereby certify,” etc., and which is signed “W. S. Wells, Jr., N. P., is a valid and sufficient certificate, notwithstanding the -omission from its body of the words “Notary Public” immediately after the name of said officer. Appeal from tlxe Circuit Court of Madison. Tried before the Hon. Osceola Kyle. This was a statutory action of ejectment, brought by the appellees against the appellants, to recover certain lands specifically described in the complaint. The facts of the case relative to the claim of title of tbei respective parties are sufficiently stated in the opinion. The certificate of acknowledgement made by th notary public and attached to the deed from Epperson and wife to Karthaus, referred to in the opinion, after reciting the State and county, proceeded in the following language : “I, W. S. Wells, Jr., in and for said county and State, hereby certify,” etc. When this deed was introduced in evidence, the defendants objected thereto upon the ground that it did not appear to have been acknowledged before an officer authorized to take and certify ac-knowledgements. The court overruled this objection, and the defendants duly excepted. The cause was tried by the court without the intervention of a jury. Upon the introduction of all the evidence, the court rendered judgment in favor of the plaintiffs. From this judgment the defendants appeal and assign as error the several rulings of the trial court, to which exceptions were reserved. Humes, Sheeeey & Speake, for appellants. The transaction between McCracken, the Association and Pleasants on March 20, 1897, whereby the Association agreed to cancel and discharge McCracken’s debt to> it, and to surrender his note, and McCracken agreed to cancel and discharge Pleasant’s deed of trust (and did takq it)-to secure the amount of $600, operated as a no-vation, and was a discharge and payment of McCracken’s debt secured by his deed of trust of May 16, 1891, and operated to revest the title to said property in Mc-Cracken, to pass immediately to- Miss Leech under her mortgage of August, 1893.' — Altman v. Fletcher, 110 Ala. 452, 458-9; Milhous v. Duncan, 78 Ala. 48; 75 Ala. 452, 458; 61 Ala. 155; N. A. Dev. Go. v, Short, 13 So. Rep. 385. • The deed of trust from McCracken to Martin as trustee, of May 16, 1891, and that from Pleasants to Nolen as trustee, of March 23, 1897, imposed upon said trustees, respectively, active duties in respect of taking possession of the property upon default, declaring the indebtedness due for failure to pay taxes, etc., advertising, selling and conveying in accordance with the terms of the trust-deeds, and vested the legal title to the property in such trustees, respectively. — 8ha\han v. Tethro, 114 Ala. 405, 407, (a B. & L. Ass’n. deed of trust) ; Robin-sou v. Fierce, 118 Ala, 274, 290, 3d and 4th headnotes; Code, § 1028. A deed from a corporation must be acknowledged by the officers wlm sign the corporate name, and must be acknowledged by them in their official capacity and not as individuals. — Chicago etc. Bank v. Baker, 62 Ill. App. 154; Klemme v. McLay, 68 Iowa 158; 26 N. W. Rep. 53; Bernhardt v. Brown, 29 S. E. Rep. 884. A certificate of acknowledgement taken by one signing his name followed by the initials “N. P.,” and the body of the certificate not showing his official character or style of office is insufficient. — Code, § 996. Where several persons are sued jointly in ejectment, and there is no proof or admission that some of them claim under a common grantor with the plaintiffs, as against such - defendants, the plaintiffs cannot recover without proof of conveyances hack to the government or to some grantor in possession, or proof of prior actual possession in the plaintiffs themselves.' — 3 Brick. Dig., 325, § 40, 38, 47; Florence etc. Assn. v. 8chalí, 107 Ala. 531; T. C. I. cG R. R. Co. v. Tutioiler, 108''Ala. 483. Cooper. & Foster, contra-. Appellant contends that in the transaction between McCracken and the Association, the deed of trust was satisfied, and her mortgage, being of record when the deed to Pleasants was made, gave her a title superior to that taken by Pleasants under his conveyance from the Association. There is no merit in this contention. — Fouche v. Sioain, 80 Ala. 151; Jones v. Davis, 121 Ala. 348; Hassell v. Hdssell, 29 So. Rep. 695, Even without the consent of the mortgagor, the Association could have conveyed the legal title to- Pleasants. McCracken having made default in the payment of the debt secured by the deed of trust, the absolute legal title vested in the Association, who could convey it to whomsoever it pleased, subject only to- the right of tbie mortgagor, or his assigns, to redeem. — Downing v. Blair, 75 Ala. 216; Welsh v. Philips, 54 Ala. 309; High v. Hoffman, 29 So‘. Rep. 658. When a conveyance under the seal of a corporation is executed by persons assuming to act in an official capacity, their authority SO' to' act will be presumed; also; that such authority was not exceeded. — Jimvright v. Nelson, 105 Ala,. 399; St. Lo-uis PiCblio Schools v. Bisley, 75 Am. Dec. 131; Burrill v. Nahrnt Bank, 35 Am. Dec. 395; 2 Cook on Stockholders, § 722. [MAJORITY — SHARPE, J.] SHARPE, J. This was a statutory action in the nature of ejectment and was tried without a jury. The defendants pleaded separately not guilty and have here made separate assignments of error. Plaintiffs and the defendant, Sarah Leech, claimed through Joseph Mc-Cracken. To prove this claim, the plaintiffs introduced a deed of May 16, 1891, from McCracken to Martin in trust to secure a debt of the grantor to the Southern Building & Loan Association, containing power to thei trustee to sell the property for payment of the debt after default therein and notice advertised, and containing also a power to the Association to substitute another as the trustee in case of the death, resignation or removal of Martin; ;/n instrument made March 20, 1897, by the Association reciting that Martin had died and purporting to1 substitute Cooper to the trust; a deed of March 23, 1897, from the Association and Cooper as trustee to Pleasants; a deed of March 23, 1897, from Pleasants and his. wife to Nolen in trust to secure a debt owing by Pleasants to the Southern Building & Loan Association, giving power to the trustee to sell for payment of the debt after default therein and notice advertised; a deed of June 30, 1899, from Pleasants and wife to that Association expressed to be in payment of the debt men-tinned in the deed in trust to Nolen; a deed oí July 5, 1899, from the Association to Epperson; a' deed of July 7, 1899, from Epperson and Ms wife to Ernest Karthaus of Avlioni the plaintiffs; are the only heirs. It Avas proved that McCracken gave his written power for the making of the deed from Cooper and the Association to Pleas-ants in consideration of his discharge by the Association from the debt secured by the deed he made in trust to Martin. The defendant, Sarah Leech, introduced in evidence a mortgage of th,e property to her made by McCracken on August 31, 1893. The other defendants are not shown to have claimed in right of ‘ Sarah Leech or through McCracken, or to have made any admission respecting title. Therefore, to show a right to recover against them plaintiffs Avere under the; necessity of proving, that they, the plaintiffs, had held prior possession of the lot in question, or that McCracken or some one else Avith aaíioiu they AA’ere in privity had held title- or prior possession. — Hines v. Clancey, 47 Ala. 637; Doe v. Clayton, 73 Ala. 359; Payne v. Crawford, 102 Ala. 387 ; Florence B. & L. Association v. Schall, 107 Ala. 531. There Avas no evidence of the title in McCracken, or that any one preceded the defendants in possession, and this of itself shows there Avas error in rendering judgment against the defendants -other than Sarah Leech. Upon other considerations the judgment was erroneous as to all the defendants. By the first mentioned trust deed such title as may have been in McCracken Avas vested in the trustee Martin, and the poAver of substituting another to- the trust depended on the contingency of Martin’s death, resignation or removal. There Avas no evidence of the happening of either of those contingencies other than in the recital of the instrument made by the Building & Loan Association purporting to substitute Cooper, and those recitals were not binding upon or evidence against the defendants, they being strangers to that instrument. As a general rule recitals of a pri-A'ate Avriting are treated as res inter alios acta, and are evidence only against the parties thereto and their pri vies. — Wood v. Lake, 62 Ala. 489. We do not say this rule is applicable to recitals made in the execution of a naked power of sale such as were involved in Nougher v. Sparkes, 110 Ala. 572. In the absence of evidence that the first trusteeship became vacant, the presumption is that the legal title to the property continued in Martin notwithstanding the attempted substitution of Cooper and the subsequent attempts to convey title, and with that presumption prevailing plaintiffs were left without proof of title in themselves. Though Sarah Leech held through Mc-Cracken and as a junior mortgage had no better right than he to question the title he conveyed to Martin, she had a right to require that title be traced by proof to the plaintiffs as a prerequisite to their recovery. Neither that or any right of hers was prejudiced by McCracken’s agreement with Cooper, the Association or Pleastnas made subsequent to the execution of her mortgage. Jones on Mort.. § 730; New England Mort. etc. Co. v. Hirsch, 96 Ala. 232. If in fact there was a vacancy in the first trusteeship, and a consequent valid substitute of Cooper thereto, it may be that the deed he executed with the Association to Pleasants carried such title as McCracken may have had. Though defective for lack of advertisement, etc., as an execution of the power of sale given in the trust deed of McCracken, Cooper’s deed could yet have been effective to transmit such legal title as he had acquired. Robinson v. Cahalan, 91 Ala. 479; Robinson v. Pierce, 118 Ala. 273. Had the title thus been traced to Pleas-ants, the evidence would have still fallen short of tracing it from Nolen who, as trustee in the deed from Pleas-ants to the Association, succeeded to the former’s title. It is true, as has been suggested in briefs, that a trust ceases when its object has been accomplished, and that where the nature of the trust is such that it alone separates its beneficiary from the full ownership of the property, the cessation of the duties and powers created by the trust wil], by virtue of the statute of uses operate to divest the trustee of title and carry the same to the beneficiary. Authorities on this subject may be found in Robinson v. Pierce, supra; Gossom v. Ladd, 77 Ala. 223; Schaffer v. Lavretta, 57 Ala. 14; Comby v. McMichael, 19 Ala. 747; and Perry on Trusts, §§ 312, 320. The plaintiffs, however, are not helped by this doctrine, for. it has no application to a conveyance in trust to secure a debt. Of such a conveyance the creditor is the cestui que trust, and the payment of his debt leaves him without interest in the property. Nor is the case influenced by § 1067 of the Code of 1896, Which provides that “Payment of a mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage.” A deed in trust to secure a debt, though sometimes called a mortgage, is essentially different from a mortgage as has heretofore been pointed out. Such a deed is not within the terms of that statute and cannot be brought within its provisions without speculation as to legislative intention, which, if it were indulged, it would not make clear that the instrument was not merely to obviate the difficulty of-obtaining a recon-veyance where the positions of the parties are antagonistic, as in the case of a debtor and his creditor holding title to hfs property — a difficulty not likely to exist when the title is in a trustee who presumably has no- interest in the debt and consequently no temptation to withhold a reconveyance in order to coerce the payment of more than is actually due. The objections made on the trial to the deeds of the Association to Pleasants and Epperson, respectively, were obviated by evidence introduced after the introduction of the deeds, showing that the persons who acted for the Association in their execution, Avere its officers, having authority under its by-laws to act in that regard. To the acknoAAdedgment of the deed from Epperson to Karthaus there is appended the signature, “W. S. Wells, Jr., N. P.” The letters N-. P. are judicially knoAvn to he in common use as signifying “Notary Public,” and accordingly they are to be given that signification in this use here made of them. — Cyc. of Law & Pro., 572, 573. So interpreted the signature gives official character to the certificate to the extent of showing that the notary took the acknoAAdedgment in his official capacity. This appearing the certificate is not vitiated by the omission from its body of the words “Notary Public” as strict conformance with the Code form would have necessitated. Substantial, but not necessarily strict conformity to that form, is the requirement of the law. — Sharpe v. Orme, 61 Ala. 263; McCarver v. Herzberg, 120 Ala. 523; Frederick v. Wilcox, 119 Ala. 355; 1 Cyc. Law & Pro: 577. Reversed and remanded.