The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1902-07-31
WOODRUFF '. ADAfR ct al.


Bill in equity to cancel deed as cloud
upon titie-Appeai from the City Court
of Taliadega, in equity.
l. Motion to dismiss bill for want OF
equity; must be considered without re-
gard to answer or proof.--On Snouon 20
dismiss cross bill for the want Of equity.
all the statements in said cross tiil ere
admitted to De true. and in passing upon
said motion the chancellor Ii not au-
thorized, nor Is the Supreme Court in re-
viewing his ruling. authorized TO con-
slider the averments of the answer to said
cross bill. and the evidence In the origi-
nal cause: but the motion In to be de-
termined upon an inspection of the cross
bill itself in its relation to the original
hill.
Q. Mortgages: rights Of assignee. The
assignment by a mortgage OF mort
gage and the debt secured thereby. IN
vests in the assignee the ,sower to fore
close a mortgage the same rs In equity
or to sell the property under the power
contained in the mortgage, az fully as
the mortgage could have done.
& Same; effect of purchase by mort
gagee without being authorized thereto.
The purchase by a mortgage OF mis- as
signee at sale under the power con-
tained in a mortgage. the authority SO
to do not being conferred BY the mort
gage, docs not make said sale vVid. but
voidabie only at the option OF the mort
gaeor or one claiming under him IN prtvi-
ty. exercised within two years, but as to
all other parties. such sale is valid.
4. Same; eeffct Of sale under power
where a mortgage 10 regularly foreclosed
under the power Of sale contained there
in, and the mortgage being authorized 30
to do purchases the fEiortgagsd property,
such sale operates as foreclosure and
ctsta OF the equity Of redemption, al
though the mortgages purchaser did not
receive a deed but merely a. certihcate
from the auctioneer.
8. Same; right Of assignee who pur-
chases at foreclosure sale.-Where a
mortgage giving the mortgage the rignt
to purchase at the foreclosure sale Is
assigned, and at the sale under the power
the assignee becomes the purchases, and
while he receives no deed ne Is given
certiflcate OF purchase by the auctioneer.
such assignee, al purchaser. although he
can not maintain an action of e1ectnient,
can maintain a bill for SPECIFIC perform
ance, against his assignor. the mortSa8ee'
and compel said mortgage to convey the
title to the lands purchased at the FORE
closure SALE, to him.
6. Assignment Of mortgage; when con-
stitstes equitable mortgage or hen.-
Where, after the regular foreclosure Of
MORTGAGE under a power OF sale con
tanned therein, at which sale the holder
Of the mortgage being authorised thereto
became the purchaser. ana does not re-
Give q deed but merely a certificate OF pur
chase from the auctioneer, and such pt.r-
chaser, as collateral security for his debt
assigns by endorsement the mortgage and
notes and the certificate Of purchase. the
assignee thereby acquires an equitable
naortgaRor's Hen which can be enforced
in a court of equity.
7. Equitable Hen; when II does not arise
from deposit Of title deeds.-- lien wlhch
arises from the transfer Of security Of
A debt presently contracted, 10 not Her
arising out Of deposit OF title deeds, o1'
is valid and enforceable.
4. Escrow; what necessary to consti-
tute ito constitute an escrow. tho
rrantor must have surrendered contro
over the deed or other written tnstru'
nent, and the delivery OF the deed o.
written instrument to the party to sucf
instrument does not come within the
meaning OF an escrow; since there mus
be a delivery by the grantoSs to third
person who IL not q party to the instru
ment.
reversed ana remanded.
(lrlnoft by HARRISON, j.