Welsh v. Phillips
Supreme Court of Alabama
Appeal from Circuit Court of Perry. Tried, before Hon. M. J. Saeeold. This was a real action under tbe Code, in wbicb tbe appellants were plaintiffs, and tbe parties respectively deduced title from Nicholas Welsh, who, on tbe 7th day of April, 1842, by mortgage conveyed tbe premises to John S. Welsh, to secure on or before tbe 1st day of January, 1844, tbe payment of a debt due him from said Nicholas.
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Appeal from Circuit Court of Perry. Tried, before Hon. M. J. Saeeold. This was a real action under tbe Code, in wbicb tbe appellants were plaintiffs, and tbe parties respectively deduced title from Nicholas Welsh, who, on tbe 7th day of April, 1842, by mortgage conveyed tbe premises to John S. Welsh, to secure on or before tbe 1st day of January, 1844, tbe payment of a debt due him from said Nicholas. On tbe 20th of November, 1842, tbe said John S. being in possession under tbe mortgage, (tbe mortgage not reserving to the mortgagor possession,) made a conveyance in fee simple of tbe premises…
1Opinion of the CourtBrickell, C. J.
The question most fully discussed by counsel, and which, we suppose, controlled the judgment of the circuit court, the effect and operation of a conveyance absolute in form and terms, by a mortgagee in possession of the mortgaged premises, without an assignment or transfer of the mortgage debt, has not been the subject of express adjudication in this court. In Duval v. McLoskey, 1 Ala. 737, the court, citing the decisions in New York which hold a transfer of an interest in the mortgaged premises without an assignment of the debt, is a nullity — the mortgage being a mere incident to the debt,…
2Cases cited9 opinions
- Doe ex dem Duval's heirs v. McLoskeySupreme Court of Alabama · 1840
- Graham v. NewmanSupreme Court of Alabama · 1852
- Barker v. BellSupreme Court of Alabama · 1861
- Powell v. WilliamsSupreme Court of Alabama · 1848
- Paulling v. Barron, Meade & Co.Supreme Court of Alabama · 1858
4 more not listed; retrieve them via the Exa API.
3Cited by61 opinions
- Harmon v. Dothan Nat. BankSupreme Court of Alabama · 1914
- Otis v. McMillan & SonsSupreme Court of Alabama · 1881
- Prestwood v. WatsonSupreme Court of Alabama · 1895
- Harris v. MillerSupreme Court of Alabama · 1881
- Farris & McCurdy v. HoustonSupreme Court of Alabama · 1883
56 more not listed; retrieve them via the Exa API.