Samuel Nelson

“ The court, after referring to the general rule, observed, that a verdict and judgment of a court of record, or a decree in chancery, although not binding upon strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. In this there is, and ought to be, no difference between a verdict and judgment in a court of common law, and a decree of a court of equity. They both stand on the same footing, and may be offered in evidence under the same limitations, and it would be difficult to assign a reason why it should be otherwise. ”

“ I therefore submit, that the language of the deed cannot preclude the plaintiffs in error from showing that the consideration was illegal; and being illegal, the mortgage is void; and therefore the court erred in refusing the charge asked, and in charging as it did as to the validity of the deed.
Another question is, Could the Alabama Life Insurance and Trust Company transfer a title, after Smith had denied the validity of the mortgage, and held the possession adverse to the company? Could the company make a deed that would be valid as against the adverse possessor? ”

“ The judge was required to charge the jury, that, upon the hypothesis presented, without any color of support from the evidence, the assignment of the mortgage was void, and could give the lessor of the plaintiff no title which the court would enforce. The grounds in law upon which the judge could be asked to declare the deed void, and to decide that it could give no title which the court could enforce, are nowhere exhibited in the argument, unless they are supposed to be somehow involved in the general question of jurisdiction, which will be considered presently. ”

“ The court say, that, if a complainant seeks in a court of equity to enforce a strictly legal title, when his remedy at law is plain and adequate, the dismissal of his bill amounts to a declaration that he has no equity, and the court no jurisdiction ”

“ If the facts proved by the defendant could be of no avail, either upon a plea in abatement or upon the general issue, then the decision of the judge, as imputed to him, would be wholly immaterial, and therefore it is not error to reverse the judgment. ”

“ Difference between application by mortgagor and mortgagee, 1 Powell on Mortgages, 336.
At law, a mortgage is a conveyance of land. The statute of Alabama executes the use, and the courts of Alabama have decided that the mortgagee is entitled to possession as soon as the deed is made. ”

“ Levy, because this has already been done by the late Judge Story, in the case of Briggs v. French, 2 Sumner, 252. With the force of ability, learning, and experience, and the high judicial authority, which that eminent and lamented judge could bring to the discussion, it would be a work of supererogation, if not of presumption, especially in this court, where he was so well known as a judge and a jurist, to attempt to add a word to what he has said. This decision was in the year 1835, with the light of nearly half a century upon the law and practice of the courts of the United States. ”

“ The defence attempted is a very ungracious one. There is no denial that the company fulfilled its agreement, gave the bonds, an in due time paid them, and that the party who received converted them, in such way as seemed best to him, to his own use. ”

“ The consideration is not to be inquired into.
The doctrine of the court of Alabama above quoted is the universal doctrine. Hughes v. Edwards, 9 Wheat. 389. 'The mortgagor, after forfeiture,' (which is the case here,) 'has no title at law, and none in equity, but to redeem upon terms of paying the debt and interest.' (p. 499.) The mortgagee may proceed at law and in equity at the same time. A real action may be brought upon a mortgage in fee. ”