98 Ala. 129 | Ala. | 1893
In March, 1882, Florence R. Atkins, who then owned the land involved in this suit, mortgaged it to the Dundee Mortgage & Trust Investment Company, Limited. In April, 1886, she executed a second mortgage on the same land to Woodruff & North. On May 28, 1888, Woodruff & North offered the land for sale under the power of sale in the mortgage to them, and it was bid in by Tut-wiler, the complainant in the original bill and the appellee in this court, for the sum of $1,504.00. On this bid he paid in cash $700.00. It does not appear who was in possession of the land at the time of this sale, or that Woodruff & North undertook to put Tutwiler in possession. He did, however, take possession of the land after the sale, and has been in possession, receiving the rents and profits, since that time. In July, 1889, part of the debt secured by the first mortgage to the Dundee Company being still unpaid, and the balance of the amount bid by Tutwiler at the sale under the power in the second mortgage to-Woodruff & North not having been paid, the appellant, Mary B. Atkins, purchased the respective interests of the mortgagees in both those mortgages, and they were duly transferred to her. And on September 2, 1889, she acquired all the right, title and interest of Florence R. Atkins in the land covered by the mortgages by a deed of conveyance from her. The original bill in this case was filed September 11, 1889, by said Tut-wiler, claiming as the purchaser at the sale under the power
Tbe appellant contends that tbe appellee Tutwiler should be treated as a mortgagee in possession, and in that character should be charged with rents and profits ; and that be is not entitled to tbe specific enforcement of tbe contract of purchase made by bis bid at tbe sale under tbe power in the mortgage to Woodruff & North.
By tbe terms of that power tbe sale was to be for cash. It is well settled in this State that, though tbe power in tbe mortgage expressly provides for a cash sale, an agreement by tbe mortgagee to allow time to tbe purchaser affords tbe mortgagor no ground of complaint. “Tbe payment of tbe purchase-money is a matter between tbe mortgagee and tbe purchaser. Tbe mortgagor has no other interest, than that be obtain credit and benefit of tbe amount bid.” Mewburn v. Bass, 82 Ala. 622; Durden v. Whetstone, 92 Ala. 480; Cooper v. Hornsby, 71 Ala. 62. But it is clear that it is tbe right of tbe mortgagee either to insist upon tbe payment in cash of tbe amount of tbe bid, or to make .the consummation of tbe sale dependent upon a compliance by tbe purchaser with tbe terms of credit agreed upon. He is entitled, as against any bidder at tbe sale, to bold tbe title to tbe mortgaged property as.mortgagee until a bid is made and paid in the manner prescribed by tbe power, or until be becomes bound by tbe terms of an agreement between him and tbe successful bidder to execute a conveyance under tbe power and to become accountable to tbe mortgagor for tbe amount of tbe bid. Tbe mortgagee’s interest is to realize on tbe security to tbe extent of the debt due to him. Tbe successful bidder is not entitled to tbe property as purchaser until be complies with tbe conditions of the sale. When be claims as tbe purchaser at a sale under a power which provides for a sale for cash, if bis bid was not paid in cash, the burden is upon him to show that tbe mortgagee consented to accept a provision for future payment in lieu of tbe cash, and that the provision for such future payment has been made, or that there is some legal excuse for the failure to make it in tbe manner agreed upon.
Tutwiler’s version of tbe circumstances connected with bis bid at tbe sale under tbe power is, that before tbe sale was made be agreed with tbe attorney for tbe mortgagees to bid at tbe sale tbe amount of their debt, and that be
No attempt is made to excuse Tutwiler’s failure to comply with the several demands made upon him for the payment of the balance, upon the ground that he was entitled, under the arrangement with the mortgagees, to further time
"When, for any reason, a sale of mortgaged property under an attempted foreclosure, whether by suit or under a power of sale, is ineffectual to cut off tbe mortgagor’s equity of redemption, tbe purchaser at such sale succeeds to the title and rights of tbe mortgagee in the property, and may enforce them as tbe mortgagee could have done, bad no sale taken place. Tbe receipt of tbe purchase-money by tbe mortgagee operates as an estoppel upon him to claim tbe benefit of tbe mortgage as against tbe purchaser. Taylor v. Agricultural & M. Assn. 68 Ala. 229; Jordan v. Sayre, 10 So. Rep. (Fla.) 823. Upon like considerations, tbe payment of a part of tbe amount bid at a sale' under a power in a mortgage, if tbe sale fails of consummation in consequence of tbe non-payment of tbe balance on tbe bid, operates in equity as an assignment of tbe mortgage debt to the extent of tbe amount 'paid, and to that extent entitles tbe bidder at tbe abortive sale to tbe benefits of tbe mortgage security. If such bidder at a sale which ivas never consummated takes possession of tbe mortgaged premises, his possession is that of a mortgagee before, foreclosure. He is, therefore, accountable for rents and profits.
Tbe decree of tbe Chancery Court is reversed, and tbe cause will be remanded for further proceeding in conformity with this opinion.
Reversed and remanded.