Clark v. Johnson, 47 So. 82

Clark v. Johnson

47 So. 82 | Ala. | 1908

TYSON, C. J.

This bill was exhibited to enforce what complainant conceives to be his equity of redemption. The manifest theory upon which it proceeds is that there has been no valid forecloseure of the mortgage executed by him upon the lands whose redemption is sought. The defense invoked is that the mortgage was regularly foreclosed, a purchase at the foreclosure sale, and deed of conveyance and possession and title thereunder. Whether there was a foreclosure at all, and, if so, whether the foreclosure was a valid one, is, in our opinion, the material and determinative question presented by the record.

That there was an attempted foreclosure of the mortgage under the power contained therein, and that the respondent Mathews became the purchaser at the sale, is practically admitted by the complainant in his testimo*650ny and is not denied by,any other witness examined in the case. So, then, it may be said that the testimony established without conflict that there was a foreclosure of the mortgage, and that the respondent Mathews was a purchaser at that sale, as shown by the deed to him, which purports to be in execution of the power conferred by the mortgage. The power is in this language: “But if by that time (day of maturity of note) we fail to pay said note and costs, then we hereby authorize and empower the said E. Jane Webb [later Mrs. Johnson], or her agent or assignee, to immediately take possession of said property above described, and after giving 10 days’s notice of the time and place and terms of sale, by posting written notices at the courthouse and two other public places in said county, to sell the same to the highest bidder for cash at the courthouse door of said county, and to execute titles to the purchaser,” etc. The deed recites a compliance with this power, and was executed by Mrs. Johnson, the mortgagee, and the testimony sufficiently establishes that Mathews, the purchaser, went into possession of the lands described in and conveyed by it. Those recitals, without more, are prima facie evidence of the facts stated, and, in the absence of some evidence tending to show that they are untrue, must be held sufficient to establish, not only the fact of the foreclosure of the mortgage, but a valid one. — Johnson v. Wood, 125 Ala. 330, 28 South. 454; Naugher v. Sparke, 110 Ala. 572, 18 South. 45.

Much is said in argument with respect of Mathews having estopped himself to invoke the defense' of purchaser at the foreclosure sale. No such ground of equity is asserted by the bill, and, even if established by the testimony, would be unvailing. — Jones v. Peebles, 130 Ala. 269, 30 South. 564.

Affirmed.

Dowdell, Anderson, and McClellan, JJ., concur.