68 So. 1 | Ala. | 1915
This principle is so elementary that it has seldom been challenged, and it is stated as of course by tbe
It is to he observed, of course, that the execution of a power of sale pending a hill for redemption is not a nullity, and, indeed, is valid for every purpose not inconsistent with the relief afterwards granted to the redemptioner under the prayers of his bill, assuming that any part of the mortgage debt remained due and unpaid. The decree for redemption usually fixes a future day on which the mortgage debt must be paid, and, in default of payment, declares the bill must stand dismissed at the cost of complainant.—McGuire v. Van Pelt, 55 Ala. 344, 351. It is obvious that, when a bill for redemption is thus dismissed, an intervening foreclosure would stand as though the bill had never been filed.
Hence, while a power of sale is not absolutely suspended by the mere pendency of a bill to redeem, its exercise is subject to the equity of the bill, as decreed by the court, and as availed of by the complainant. The statement in the recent case of Presnail v. Burgess, 181 Ala. 263, 61 South. 804, that “the pendency of the cause to redeem will not suspend the right to exercise the power of sale, * * *' notwithstanding the bill offers to do equity by satisfying the ascertained sum secured by the mortgage,” must be taken with the qualifications above stated, and, as there applied, it is not in conflict with the principles now affirmed. In that case it appeared that the amount of the mortgage debt had been previously fixed by a mutual accounting and adjustment between the parties. The bill not-impeaching this account stated, and not offering to pay the sum
In the instant case, however, the bill charges usury in the mortgage indebtedness, and alleges that, interest excluded, the principal has been satisfied, and that the complainant is not indebted to the mortgagee respondent in any sum whatever. If these allegations are true, the supplemental bill for a temporary injunction contained equity, and the writ was properly issued, and should have been retained until the cause was disposed of by final decree.
It results that there was error in the decree sustaining the motion to dissolve the injunction for want of equity in the supplemental bill, and also in sustaining
The prevailing opinion qualifies the following expressions of doctrine set forth in Presnall v. Burgess, 181 Ala. 263, 270, 61 South. 804, 807: “Where the bill does not show that the entire amount for which the mortgage affords security has been paid or tendered, the pendency of the cause to redeem will not suspend the right to exercise the power of sale vested by the mortgage in the mortgagee, * * * notwithstanding the bill offers to do equity by satisfying the ascertained sum secured by the mortgage.”
Reduced to final analysis, the qualification made of the stated doctrine is that the unenjoined exercise of the power of sale, according to the terms of a mortgage given to completely secure a named or legally ascertainable money obligation or obligations, pending a bill for an accounting and redemption, in which offer is made to pay the ascertained sum secured by the mortgage, is subordinate to the thus initiated effort to redeem; and, being so, such an exercise of the power, though unrestrained by injunctive process, is subject to be set aside, notwithstanding all of the obligation secured by the mortgage has not been in fact tendered or paid.
In section 1906, pp. 863, 834, of Jones on Mortgages (6th Ed.), it is said: “Where a power in a mortgage is to continue as long as any part of the mortgage debt
The doctrine of the quoted text is pointedly supported by the opinion in Stevens v. Shannahan, 160 Ill. 330, 43 N. E. 350. Justice Craig wrote the opinions in Ryaai v. Newcomb, cited in the opinion prevailing here, and in the just cited case of Stevens v. Shannahan. The court there said of its previous deliverance in Ryan v. Newcomb: “It is claimed that, since the original bill of Bridget Shannahan for an accounting and for redemption was pending and undetermined at the time of. the sale under the power, such sale was improper and void, and the case of Ryan v. Newcomb, 125 Ill. 91, 16 N. E. 878, is cited as sustaining such claim. The doctrine of the case so relied on, even if it should be adhered to, is not to be extended beyond what was there decided. There is a very marked difference between that case and this. Them it was claimed in the bill that was. pending at the time of the sale that Ryan, the complainant, was not indebted to Newcomb in any amount, whatever, and that nothing was due on the note for $1,400 that the trust deed was given to secure. Assuming the averments of the bill to' be true, Ryan, was not in default, and the mortgage indebtedness had entirely ceased to' exist, and the power of sale had become inoperative and void.”
It is plain that Ryan v. Newcomb cannot be advisedly taken as authority for the announcement made in the prevailing opinion on this appeal.
Precedent for the qualification of the stated doctrine of Presnail and Burgess is said to exist in section 1797 of Jones on Mortgages (6th Ed.), 27 Cyc.
Reference to the citation from Jones on Mortgages and from Cyc. will disclose that both are based on Clark v. Griffin, 148 Mass. 540, 20 N. E. 169. The decision in the case of Clarke v. Griffin, supra, was expressly put upon the other earlier case of Way v. Mullett, 143 Mass. 49, 8 N. E. 881, and the ruling in the Way Case was expressly rested upon the statutes of that state the court saying at page 54, of 143 Mass., at page 884 of 8 N. E.: “The majority of the court are of opinion that the plaintiff has brought himself within the terms of the statute, and that he is entitled to redeem the estate upon paying what is due the defendant.”
Reference to the statutes cited and construed in these Massachusetts eases discloses that redemption and notice of lis pendens, and, in consequence, the respective rights of mortgagors and mortgagees in that connection, were governed, in these cases were in fact controlled, by the statutory system therein considered and applied. So, there being no such statutory system in this state, these cases cannot be taken as supporting the ruling made here; and, in necessary consequence, the text in section 1797 of Jones’ work should be accorded an interpretation consistent with its foundation, and not as immediately contradictory of the same writer’s text in section 1906, pp. 853-4. My judgment is that the language employed in section 1797 of Jones’ work shows that the author was stating a statutory rule.
The only semblance of authority for the ruling now made that has been discovered is our decision in Nat. B. & L. Ass’n v. Cheatham, 137 Ala. 395, 401, 34 South. 383. Its whole statement of reason and conclusion, per
Now tbe only instance where tbe mere filing of a bill will render tbe exercise- of tbe power of sale subject, subordinate, to tbe court’s final decree in tbe cause, is when tbe bill appropriately shows that tbe power of
I would affirm the decree.