5 So. 2d 397 | Ala. | 1941
This is a second appeal in this case.
An agreement of the parties shows, among other things, not here in controversy, that Henderson collected from W. F. Coon $225. on April 28, 1940, which was the rental value of the land for 1939, and that he went into actual possession of the land on August 20, 1940, and took over the crops then outstanding which he gathered and marketed of $344.91. The final decree was entered August 25, 1941, after the report on reference.
The register disallowed both of those items, but reported that if those items should be allowed one would be $237.41 (including interest, we presume), and the other would be $433.55, making a total of $660.96. The court likewise disallowed such charges. The decree took no account of the rents of 1941, to which we will refer later.
The first question relates to the claim of charge to Henderson for the rents collected for 1939, and the net value of the crops of W. F. Coon, which were received by Henderson in 1940, which were on the land when he assumed actual possession.
Henderson should be treated in the same status as a mortgagee in possession under an unforeclosed mortgage for the purposes of this suit, as was done on former appeal. Moses v. Johnson,
A mortgagee in possession before foreclosure is responsible on redemption for rents collected, or for rental value if he used the property. From that amount he may deduct repairs and taxes, but not improvements. American F. Land Mortgage Co. v. Pollard,
The same principle applies to a conditional vendor in possession, in the absence of a different contract. Pearce v. Third Ave. Inv. Co., supra; Forrester v. Granberry, supra.
But one in possession of land as purchaser under a valid foreclosure is the absolute owner, and is not chargeable with rent in respect to another whose rights were thus foreclosed. Hale v. Kinnaird,
In this case the equity of redemption by the husband was cut off in a suit of specific performance in which this complainant was not a party. Specific performance as between vendor and vendee is similar to foreclosure or redemption, as the case may be, between mortgagor and mortgagee. Pearce v. Third Ave. Inv. Co., supra. As pointed out on former appeal (
We see no reason for denying complainant credit for the amount of rent collected by Henderson for 1939, paid in 1940, and for the net proceeds of the crops on the land in 1940 planted and cultivated by W. F. Coon, and outstanding when Henderson was put in possession in August, 1940. The statement of their accounts looking to redemption should include all such items. It is well settled in this State that "a mortgagee who comes into the possession of the property mortgaged, whether before or after default * * *, and before the mortgage has been foreclosed, is a trustee of the mortgagor of the rents and profits, and is bound to apply them in extinguishment of the mortgage debt." Lovelace v. Hutchinson,
The duty is imposed by law, and there is no need of a special prayer for such relief. The rents were all collected after this suit was brought and should be taken into consideration in stating the account. See Williams v. Noland,
After such reversal complainant sought by what she termed a supplemental bill to bring in such claims. The defendant moved to strike it because a supplemental bill was not appropriate and because such matters were involved in the issues made by the original bill. This motion was overruled, but no issue was taken on it. See Code of 1940, Tit. 7, p. 1071, Equity Rule 28 (2); Patton v. Darden,
While an amendment is the appropriate method of bringing in matter which has occurred pending the suit before final decree, whether it is called by that name, is not of serious consideration. But those credits to complainant were due to be made without a special reference to them in complainant's pleadings.
On the former appeal, all the costs in both courts were taxed against Henderson. In July, 1941, appellant secured a garnishment to issue directed to one Dorsey Cook as a debtor of Henderson on account of the rents of 1941 as a tenant on this land for that year to collect the judgment for costs. He answered, admitting an indebtedness of $225 on that account, and paid it into court. The final decree was rendered and appeal bond made before anything was done on that answer. Thereafter, on September 10, 1941, a judgment was rendered against the garnishee for that sum, and ordering the costs paid and that the balance of the $225 be paid to Henderson.
On another trial, this total sum of $225 should likewise be charged to Henderson in perfecting a redemption. See Williams v. Noland, supra, 205 Ala. at page 65 [7],
The consideration for the purchase of the land from Henderson was an agreement to assume and pay the whole of a mortgage on it to the Federal Land Bank, dated November 2, 1925, executed by J. S. Day, and also to assume and pay one-half of a mortgage made by Henderson to the Land Bank Commissioner on the same land, dated February 1, 1934. The register reported a balance due on the land bank mortgage of $1,108.12, and that Henderson had paid on account of that mortgage $154.71. We understand that to mean that the balance of $1,108.12 was after that payment. He also reported that Henderson had made payments to the land bank commissioner, one-half of which amounted to $261.07, and had made some repairs on a well of $20. The court took those figures (making an aggregate of $435.78) as the debt due to be paid by complainant to redeem.
Had the rents and profits for 1939 and 1940 been taken into account, they would have amounted to $660.96, as found by the *148 register, or an overpayment of $225.18. But those charges were disallowed by the court, and it gave no consideration to the payment of the deferred installments which were assumed as a part of the consideration.
To effect this redemption, this complainant must pay all installments which have matured, and which W. F. Coon assumed, but no more unless by an acceleration clause all of it has matured. Her redemption must be decreed to be on such terms as to place her in position where no installment shall remain in default. Compare Bessemer C. I. Land Co. v. Bullard,
So that in respect to any of the unpaid installments, not now due and unpaid, the decree properly took no account. The court evidently treated the report of the register, which states that the balance due on the mortgage (of November 2, 1925) was $1,108.12, to mean the balance remaining unpaid as of that date; and not that this balance had matured. To the extent that it had matured as to either mortgage, she should be chargeable with that also, and the court should see that any such payment on redemption shall go to the proper source. But in the absence of any such matured installments, the court properly charged her as was done, but should have credited her with the amounts found by the register of approximately $660.96. And on another trial account should be taken of the liability of Henderson for rent for 1941, and also any matured installments which neither W. F. Coon nor complainant shall have paid. Upon default of compliance by complainant with a decree of redemption her rights should be barred of further assertion.
Reversed and remanded.
GARDNER, C. J., and THOMAS and BROWN, JJ., concur.