Cooper v. Posey, 89 So. 35

Cooper v. Posey

89 So. 35 | Ala. | 1921

Complainant, appellant, filed this bill seeking to redeem from appellee. Appellee was a second mortgagee and sought to avoid complainant's asserted right of redemption by showing that he had purchased the property from the first mortgagee after the latter, the Bessemer Building Loan Association, had purchased at a foreclosure sale under its mortgage. Complainant contends that there had been an agreement by which defendant was to purchase for the use and benefit of the mortgagor, complainant's husband, then in life and the owner of the property, defendant to be secured by the mortgage against which complainant now seeks to redeem. By accepting the mortgage from complainant's husband, then owner, defendant was not estopped to purchase the mortgaged property from the building and loan association (Walthall v. Rives, 34 Ala. 91), but our judgment is that, on the proof, complainant's contention as to the arrangement under which it was purchased should be sustained; nor does it avail defendant anything that the agreement that the amount necessary to redeem or purchase from the elder mortgage should be secured by the mortgage now in litigation rested in parol, for, according to the evidence, defendant's mortgage was given to secure future advances, the amount necessary to purchase the first mortgage title included, and the mortgagor remained in possession. Junkins v. Lovelace,72 Ala. 310. The weight of the evidence sustains this view, and we apprehend the amount of the second mortgage, which was executed shortly before the foreclosure of the first, cannot reasonably be explained on any other hypothesis.

Complainant is entitled to redeem. How much she must pay for redemption we are unable to say; that will be a matter to be determined by the register in the execution of a proper decree of reference. The decree will be reversed and the cause remanded for *676 a decree of reference to ascertain the proper amount.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.