#### Buell *v.*Underwood.

*Statutory Ileal Action in nature of Ejectment.*

1. *Power of sale, ond assignment of mortgage.*— When a mortgage of lands, or other conveyance intended to secure the payment of a debt, contains a power of sale, “ the power is part of the security" (Code, § 2108), “and may bo exercised by any person, or the personal representative of any person, who, by assignment or otherwise, becomes entitled to the money thereby secured.”

2. *Same; mortgage and secured note consumed together.*—When a mortgage of lands is attached to a crop-lieu note, given to secure the same debt, bearing the same date, and attested by the same witnesses, the two instruments are, iu legal effect, but one and the same ; and under the operation of this statute, a transfer by the mortgagee of “ all the right, title and interest, in and to the within mortgage, ” conveys the secured debt, and authorizes the assignee to exercise the power of sale as the mortgagee might have done.

Appeal from the Circuit Court of Crensbaw.

Tried before the Hon. John K. Henry.

This action was brought by David Buell, against Vi A. T. Underwood and Henry Brunson, to recover t,he possession of a tract of land, which was particularly described in the complaint ; and was commenced on the 13th February, 1880. The cause was tried, as the bill of exceptions states, “ on tbe plea of the general issue, and other pleas. ” On the trial, the plaintiff offered in evidence a mortgage executed by said Underwood and wife, dated the 1st April, 1873, by which they conveyed to J. H. Weil *&*Co. the land here sued for, with the crop then growing on it, in consideration of a recited indebtedness of $544.83, “ necessary provisions this day furnished; ” recited that tbe grantors had executed their note for tbe debt, of even date with the mortgage, and contained a power of sale to tbe said J. H. Weil & Co., “ their heirs or assigns, ” if default should be made in the payment of tbe note. • Attached to tbe mortgage, as copied in the bill of exceptions, is the note therein mentioned, which is in the ordinary form of a crop-lien note, of even date with the mortgage, and attested by the same witnesses ; and a certificate of tbe probate judge, of tbe proof of “ the foregoing conveyance ” by one of the subscribing witnesses, dated tbe 24th May, 1873, is then appended, followed by a memorandum of the fact that it was filed for record on tbe same day. Plaintiff then offered in evidence an assignment indorsed on said mortgage by J. H. Weil & Co., in these words: “ For value received, we hereby transfer and assign all our right, *286title and interest, in and to the within mortgage, to Herbert *&*Murphy, and Herbert & Buell.” The defendants “ objected to the introduction of this indorsement as evidence, on the ground that it was insufficient to convey the legal title of said lands to the said transferrees; ” and the plaintiff then offered, “in connection with said indorsement, to prove that, on the 3d November, 1879, after said mortgage was transferred, ” the transferrees sold the lands, pursuant to the power of sale contained in the mortgage; that one Lane became the purchaser at said sale, and received a conveyance from the assignees; and that Lane afterwards conveyed, by quit-claim deed, to the plaintiff. “ This was- all the plaintiff’s evidence of title; and the court thereupon sustained the objection to the introduction of said indorsement as evidence, on the ground that it was insufficient to convey to the assignees the legal title to the lands conveyed by the mortgage, and that plaintiff could not recover in this action without a conveyance of the legal title. ” The plaintiff excepted to this ruling of the court, and was thereby compelled to take a nonsuit; which he now moves to set aside, assigning the ruling of the court as error.

H. A. Herbert, for the appellant,

cited *Prout v. Hoge,*57 Ala. 28; *Whitney v. McKinney,*7 Johns. Oh. 144 ; 1 Jones on Mortgages, §§ 786-7 ; *Lewis v. Wells,*50 Ala. 198 ; *McGuire v. Van Pelt,*55 Ala. 344; *Doolittle v. Letms,*7 Johns. Ch. 45 ; *Bradley v. Railroad Oo.,*36 Penn. St. 151; Perry on Trusts, § 495; 2 Washb. Real Property, 73-4; Code, § 2198.

W. D. Roberts, *contra,*

cited *Graham & Rogers v. Newman,*21 Ala. 497 ; *Welsh v. Phillips,*54 Ala. 309 ; *Bibb v. Haiuley,*59 Ala. 403 ; *Alexander v. Caldiuell,*61 Ala. 543 ; *Chapman v. Holding,*60 Ala 522.

SOMERYILLE, J.

— The sole question properly presented by the record, in this case, involves the construction of section 2198 of the Code (1876), which is as follows,: “ Where a power to sell lands is given to the grantee, in any mortgage, or other conveyance intended to secure the payment of money, *the poioer is part of the security,*and may be executed by any person, or the personal representative of any person, who, *by assignment or otherwise, becomes entitled to the money thus secured.*”

The instrument claimed to be assigned here, is a mortgage, in the usual form, conveying the land for the recovery of which this action was brought. As part and parcel of ir, bearing the same date, and attested by the same witnesses, *287is a crop-lien note, given to secure tbe same debt, and obligating the maker to pay it at a date specified. The written transfer, on the back of this instrument, is of “ all tbe right, title and interest ” (of the mortgagees), “ in and to the *within mortgage.*” Tbe court below excluded the evidence of this written indorsement, when offered by appellant, “ on tbe ground tbat it was *insufficient*to convey to tbe assignees tbe legal title to tbe lands conveyed by tbe mortgage. ” This was offered, also, in connection with the further evidence, that tbe traDsferrees of said mortgage bad proceeded, in accordance with a power of sale contained therein, to expose said land to sale at public outcry, and make a deed conveying it to tbe purchaser, who afterwards made a quit-claim of bis acquired title to tbe appellant.

We think tbe Circuit Court erred in excluding this evidence. Tbe assignment entitled the assignee to the money secured by the mortgage, within the meaning of the statute. Tbe transfer is broad enough to carry both of said instruments, wbicb are, in legal effect, but one and tbe same, and includes tbe debt secured, which thereby passes to tbe assignee. The power of sale was properly exercised by tbe assignee, being « part of the security; and a deed made thereunder, strictly in accordance with its terms, would convey such title as passed under the mortgage to the *grantee.*— McGuire *v. Van Pelt, 55*Ala. 344; *Lewis et al. v. Wells, 50*Ala. 198; *Graham & Rogers v. Newman,*21 Ala. 497.

Be versed and remanded.