Opinion
6 Div. 347.
March 19, 1925.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Ward, Nash Fendley, of Oneonta, for appellant.
When a claim is based on a mortgage or lien, the claimant must state in his affidavit the nature of the right he claims, failing which he must be cast in suit. Code 1923, § 10379. The transfer of a mortgage, which transfer is not recorded, is not self-proving. Code 1923, § 6861.
Russell Johnson, of Oneonta, for appellee.
The claim affidavit states that claimant claims title to or a paramount lien on the property; the claim by paramount lien includes a mortgage. Mobile B. L. Ass'n v. Robertson, 65 Ala. 382; Donald Co. v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431; 17 R. C. L. 596; 5 Words and Phrases, 4144. The transfer appearing on the mortgage is itself admissible of the transfer. Wells v. Cody, 112 Ala. 278, 20 So. 381; Strickland v. Lesesne, 160 Ala. 213, 49 So. 233; 5 C. J. 903. Both mortgages having been foreclosed, and legal title having passed to claimant at the time of the trial, the nature of claimant's title was absolute and undefeasible. 11 C. J. 712; Hardison v. Plummer, 152 Ala. 619, 44 So. 591.
Section 10379, Code of 1923, provides that:
"When the claim interposed [in trial of right of property] is based on a mortgage or lien the claimant must state in his affidavit the nature of the right which he claims."
In Hall, etc., Co. v. Haley, etc., Co., 174 Ala. 190, 195, 56 So. 726, 728 (L.R.A. 1918B, 924) we said:
"A claimant who fails to thus propound the nature of his claim cannot be allowed to support it by evidence of either mortgage or lien. This conclusion was announced by this Court in the case of Ivey v. Coston, 134 Ala. 259, 32 So. 664, cited with approval in Bennett v. McKee, 144. Ala. 601, 38 So. 129. The introduction in evidence of the mortgage in support of the claimant's claim was objected to on the ground of its irrelevancy to the issue, and, no foreclosure being shown, the objection should have been sustained."
Counsel for appellee conceive that the operation of the statute is avoided in this case by reason of the fact that the claimant effected a foreclosure of his mortgages after the institution of his claim suit. This theory is entirely erroneous. The status of the title, for every purpose of this claim suit, must remain what it was at the date of its institution, which of course relates back to the date of the levy of the execution. So far as the plaintiff in execution was concerned, the foreclosure was impotent and ineffective, and could not affect in any way or degree his rights as contesting plaintiff. When the claimant instituted his claim suit by filing his affidavit and bond, he was a mortgagee merely, and he remained subject to the statutory requirement above referred to.
The trial court erred in overruling the objection to the mortgage and note, and for that error the judgment must be reversed. We would infer from the bill of exceptions that the other mortgage, referred to in the reporter's statement of the case, was placed in evidence; but, as the cause must be tried again, we need not consider any questions relating to that mortgage.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.