The mortgage involved in this case was executed to the Bank of Guntersville, and not to Mardis; the bank was the mortgagee and not Mardis and the bank. The bank alone had the right to take possession of the property, and this right could only pass to another by its assignment. The mortgage secured the note which the mortgagor had executed to the bank, and any other debt that he, the mortgagor, should owe the bank at the time of the maturity of the note; and for the purpose of this appeal, it may be conceded, though we do not so decide, that it also secured any debt which the mortgagor might owe his sureties on the note at the time of- its maturity. It also by its express terms, was to stand for the indemnification of those sureties in the event they paid the debt to the bank. But, for all this, it still remains that the bank was the sole mortgagee; it alone took title under the mortgage, and it alone had the right to take over the possession of the mortgaged property. It did not assign the mortgage, nor this right to take possession under it to Mardis, nor intend to do so, or do any act having that effect. To the contrary, when the mortgagor paid to it the amount of the note, the bank, as far as it could at least, cancelled the mortgage, stamped it “paid,” and mailed this cancelled instrument to the surety, merely, it is to be presumed, for the purpose.of advising the latter that his liability on the note was at an end. Even on the assumption we referred to above, that the mortgage to the bank was intended to secure and did, indirectly, so to speak, secure any indebtedness the mortgagor might owe the surety *394at the note’s maturity, and assuming further that he did at that time owe the surety a debt, the . surety was without legal right to take possession of the property under the mortgage, because he was not the mortgagee, nor the assignee of the mortgagee. The mortgage itself passed no title nor right of possession to him, and there had been no assignment by the bank of the title and right of possession which the mortgage passed to it. To say the most, therefore, the facts to which Ave have alluded could only inure to the defendant’s benefit by way of mitigating the damages inflicted on the plaintiff’s intestate or, more accurately perhaps, in extenuation before the jury of the defendant’s conduct in taking and carrying aAvay plaintiff’s intestate’s property without right so to do. That part of the court’s oral charge to which an exception Avas reserved and its refusal to give charges 5 and 6 requested by defendants, were in harmony Avith these views.

The fact that plaintiff’s intestate was seriously ill at the time the defendants took the property from him was proper to go to the jury as matter in aggravation of the trespass; they being aware of the fact, and the property being taken against his protest.

There was no merit in the defendant’s objection to the manner in which the death of the original plaintiff was suggested and the cause revived in the name of his ad-ministratrix. — Code, § 38.

Affirmed.