The opinion
In concurring in the conclusion reached by RICE, J., I do not lose sight of the opinion written by me in Harris Co. v. Thomas, 17 Ala. App. 634 , 88 So. 51 , as indicated in the second headnote. I am still of the opinion that the law is as there stated, but the application of that principle seems to be limited in this state to equity jurisdiction and not to courts of law. I am driven to this conclusion by the opinion in Marks v. Robinson Ledyard, 82 Ala. 69 , 2 So. 292 , 295 , and Holman v. Ketchum, 153 Ala. 360 , 45 So. 206 , 207 . In the Marks Case, supra, Stone, C. J., says: "The effect of a mortgage is different from that of any other species of conveyance, in some particulars. It is treated differently in the two leading jurisdictions, equity and common law. * * * In the latter [Law] it is, as between the parties, a transfer of the legal title, leaving in the mortgagor only a right to redeem, called in the books an equity of redemption. The mortgagor in possession holds in subordination to the right and title of the mortgagee * * * and the latter may dispossess him at any time by action at law [italics mine], unless, by the terms of the mortgage. possession is reserved in the mortgagor for a term not expired." There was no such reservation of possession in the mortgage in the present case, either expressed or implied, and hence in a law forum the mortgagee is the legal owner and entitled to the possession. This case is reaffirmed in the Holman Case, supra, in which it is said: "Before foreclosure there is in the mortgagor only the equity of redemption, which is not cognizable in a court of law. (Italics mine.) For the foregoing reasons I concur with RICE, J.