By proving and introducing in evidence the mortgages executed by Mrs. Weems and others to Penny & Hamilton and tlieir assignment to plaintiff, by proving the foreclosure thereof and the conveyance to plaintiff under the foreclosure sale, the plaintiff made a prima facie case for recovery of possession of the land from Mrs. Weems and the other defendants. If Mrs. Weems had no alienable interest in the land, but only a right of quarantine in respect of it, and was holding possession of it in that right, nothing as against her or against such right of possession passed to the plaintiff through the mortgage executed by her — that is, at least, nothing cogliizable in a court of law; and had it been shown on the trial that she had a right of quarantine in respect of the land and was exercising it, the judgment for the defendants, which was rendered by the court below, would have been the proper judgment in the case. Such proof would have met and overturned plaintiffs prima facie case. But this proof was not made. Her testimony which is supposed to supply this proof is as follows: aMv husband was named John Weems. • He is dead. He will have been dead eighteen years on the 3d of December next. He was living oh the lands in controversy at the time of his death. I was living with him. I have one child. We moved on the lands in controversy in April, 1871. My husband owned this land at the time of his death. There has been no administration on this estate. I have been living on this land continuously since my husband’s death except four or five months, four years ago when we rented it to Mr. Smith. He died and we moved back on the place in August of the same year. G. W. and Heller Redden was living in the house with me on this land at the time the mortgage was given. I rent these lands for two bales of lint cotton weighing-five hundred pounds each year.” All this may be true *273and yet it may well be that she neither liad nor ivas claiming to exercise the right of quarantine; non constat, but that dower had been assigned her and embraced the land in controversy, in which case the mortgage executed by her would have vested her life estate in the plaintiff and entitled him to the possession he sues to recover; non constat also, that her husband left no children or the issue of children, or father or mother, and no brothers or sisters or their descendants surviving him, in which case title in fee to the land vested in Mrs. Weems as his heir, ("Code, § 1453, sub. 6), and such title passed to plaintiff through said mortgage.
The city court, we therefore conclude, erred in rendering judgment for the defendants.
Beversed and remanded.