
    Gamble v. Caldwell.
    
      Statutory Action of Ejectment.
    
    1. Authority to mortgagee to become a purchaser of the mortgaged property. — It is competent for the grantor in a mortgage to authorize the auctioneer who should sell under the power therein to make a conveyance to the purchaser, and the mortgage is a power of attorney to that end; and where the power is given in the mortgage to the mortgagee to become a purchaser at a sale under the mortgage, his purchase invests him with a title as fully as if a stranger had bought.
    2. Sale, under mortgage to foreign corporation, ■with no local agent. — A sale and purchase, under power in a mortgage made to a foreign corporation, who failed to comply with the law in regard to having an authorized agent in the State, becomes thereby executed so as to render such omission unavailing to the mortgagor.
    3. Sale by third person not in possession; what is not —A sale and conveyance by an auctioneer of mortgaged lands, under power given him in the mortgage, is a sale by a constituted agent of the grantor in the mortgage, and is not a sale by a “third person” at all.
    Appeal from Coosa Circuit Court.
    Tried before tbe Hon. J. R. Dowdell.
    The appellee, Albert S. Caldwell, tbe plaintiff below sued in ejectment to recover of tbe appellant, Zadock B. Gamble, tbe possession of certain lands in Coosa county named in tbe complaint. Tbe plaintiff rested bis right of recovery upon a deed made to him as trustee of tbe foreign corporation, that took tbe mortgage from tbe defendant, by P. P. Walker, tbe auctioneer wbo sold under tbe mortgage at tbe foreclosure sale. Tbe defendant, wbo was said mortgagor set up as a defense that tbe mortgage was void because said mortgagee was a foreign corporation that bad not complied with tbe laws of tbis State in its requirement of such corporations doing business here to have a known place of business and a local agent, evidenced by a declaration filed in the office of tbe Secretary of State, and on that ground objected to tbe introduction of said mortgage, but tbe court overruled tbe objection and permitted tbe mortgage to be offered in evidence by tbe plaintiff. Tbe plaintiff offered in evidence a certificate of tbe Secretary of State, showing that said foreign corporation bad fully complied with tbe law by filing tbe declaration in regard to local agent, &c. Tbe objection of tbe defendant to its introduction was overruled. To these rulings of the court tbe defendant excepted, and here assign tbe same as error. Tbe plaintiff asked tbe general affirmative charge, which was given, and tbe defendant excepted.
    Jno. A. Terrell, for appellant.
    1. Insisted that tbe court erred in giving tbe general charge for tbe plaintiff as there was no evidence that tbe defendant was in possession of tbe lands at tbe time be executed tbe mortgage through which plaintiff derived title, citing Hines v. Ohancy, 47 Ala. 637. 2. Defendant’s objection to tbe certificate of tbe Secretary of State as to tbe appointment by tbe foreign corporation of a local agent should have been sustained, as tbe same was incompetent proof tbat B. Yan was tbe proper officer to acknowledge its execution. And, tbe subsequent ratification by tbe corporation of bis act, would at most be but an equitable estoppel.—Standifer v. Swan and Billups, 78 Ala. 88.
    J. H. PaekeR, and Sayre, String-fellow & LeGrand, for appellee.
    (No brief came into tbe bands of tbe reporter.)
   McCLELLAN, J.

It was of course competent for Gamble, tbe grantor in tbe mortgage tbrougb a sale under wbicb Caldwell, plaintiff below and appellee, bere, claims title to tbe land in question, to authorize and empower tbe auctioneer wbo should cry off tbe land in tbe execution of tbe power of sale wbicb it contained, to execute a conveyance to tbe purchaser at such sale ; tbe mortgage was a power of attorney to tbat end. It is equally clear that tbe authorization, embodied in tbe power of sale, to tbe mortgagee to become tbe purchaser at any sale thereunder, rendered tbe purchase by, and conveyance to Caldwell for tbe mortgagee, the Netherlands American Land Company, as efficacious in all respects to tbe investiture of title in such trustee as if be bad been a stranger to said company and bad purchased tbe land on bis personal account.—Knox v. Armistead, 87 Ala. 511. By this sale, purchase and conveyance tbe contract evidenced by tbe mortgage became fully executed in such sort tbat if tbe mortgage bad originally been invalid by reason of tbe failure of tbe mortgagee, a foreign corporation, to comply with our laws in respect of having and declaring a place of business in this State with an authorized agent or agents thereat, tbat infirmity could not have availed the defendant below; Farrior v. New England Mortgage Security Co., 88 Ala. 275; and if tbe trial court erred in admitting in evidence tbe declaration of a place of business and appointment of an agent purporting to have been executed by R. Yan Rees president pro tern of tbe land company and wbicb was certified by tbe Secretary of State as being on file in bis office, as required by tbe statute, at tbe time tbe mortgage was executed, tbe error involved no injury to tbe defendant, since tbe rights of tbe parties to this suit were at tbe time it was instituted and at tbe time of tbe trial, precisely tlie same whether tbe statutory and constitutional provisions obtaining in tbe premises bad been complied with or not. We may remark, however, tbat we do not conceive tbat any error was committed by tbe trial court in tbe admission of tbe certified copy of said declaration. It appears to be signed by the officers and to set forth the facts required by the act of February 28, 1887. — Acts 1886-87, p. 102, its execution is properly probated and acknowledged. Code §§ 1800, 1801, and the seal of the corporation is shown to have been attached to the original.

What we have said will serve to indicate the grounds of our opinion that the mortgage executed by Gamble and the deed executed by the auctioneer to Caldwell were properly admitted in evidence.

The position taken by counsel that the sale and conveyance to Caldwell as trustee for the land company was inoperative and void because, as it is insisted, the sale was made and the deed executed by a third person, not in possession of the land, the theory being that the possession was held by the defendant adversely to such third person, is wholly untenable. The sale and conveyance were made in strict accordance with the terms of the mortgage, the “third person” referred to in argument was the auctioneer who was duly authorized by the mortgagor to make sale and conveyance of the land, and was not a third person at all but vhe attorney in fact of the grantor in the mortgage, fully empowered to do what was done for and in his behalf. The principle invoked manifestly has no sort of application to this case.

There was no conflict in the evidence. It made out a case for a recovery on the part of the plaintiff, and the court properly gave the affirmative charge in his favor.

Affirmed.  