166 So. 33 | Ala. | 1936
Lead Opinion
The bill discloses that the mortgage on complainants' realty was duly foreclosed by the mortgagee defendant pursuant to the power of sale therein contained. Such sale cut off the equity of redemption, and vested in the purchaser the legal title, leaving in the complainants only the statutory right of redemption. Allison v. Cody,
Such a right is not property or a property right, but a privilege merely (section 10156, Code 1923; Allison v. Cody, supra) to be exercised by the proper party in the mode prescribed by statute.
There is no pretense in the bill that complainants seek the exercise of this statutory right. It contains no averment even suggesting any such theory, and no such argument is advanced in brief. The equity of the bill, therefore, upon such a theory may be disregarded.
The remaining theory for the bill's equity must rest, it seems, upon complainants' right to have the foreclosure sale set aside and thus obtain the reinstatement of the equity of redemption as it existed before the foreclosure, which, of course, leads to the payment of the mortgage debt. Fortson v. Bishop,
Clearly the special prayer of the bill is not consistent with any such theory, being in effect that a decree be entered "protecting the complainants from the loss of their property under said mortgage sale," followed by a general prayer for relief.
There is a general averment to the effect that the property sold for a grossly inadequate price (Irby v. Commercial National Bank,
But confessedly the matter of the regulation of the purchasing power of the dollar is under the Federal Constitution (article 1, § 8, cl. 5) a function of Congress, and the averment that Congress omitted its duty and has permitted the creditor class to exercise this function adds no force, for it is a power conferred upon Congress alone, and which it could not even delegate to the states. Norman v. Baltimore Ohio R. Co.,
Complainants in this connection insist, therefore, that they have in this manner been hindered in the performance of this part of the contract, which is thereby excused, citing 6 R.C.L. 1020; 13 Corpus Juris 647; Bob Moha v. Hudson Boxing Club,
We are unable to understand, however, that in any event the principle of these authorities is here applicable. Complainants' mortgage has been duly foreclosed, with no charge of irregularity in the sale. There is left in complainants only a privilege, a statutory right of redemption, here not sought to be exercised. Conceding all that, complainants claim they are rendered less able to procure the money for the exercise of such a statutory right, nothing more. Nor, as before stated, does the bill rest upon any theory of the exercise of the equity of redemption by setting aside the foreclosure sale. *577
Our conclusion is the bill is without equity. The chancellor sustained the demurrer and dismissed the bill upon the theory that it presented no amendable defect. We are in accord with this view. Shaup v. Grand International Brotherhood, etc.,
The decree is accordingly here affirmed.
Affirmed.
BOULDIN, FOSTER, and KNIGHT, JJ., concur.
Addendum
Upon reconsideration, we have again reviewed the averments of the bill (the salient features of which appear in the report of the case), and we are still of the view that such treatment of the bill is correct, and that no other remedy, under the allegations of the bill, treated as well pleaded, and amendable as to any defects therein, is available to complainants under the laws of this state, as to the protection of said property therein described. We may add, also, that, in our opinion, there is disclosed no denial to complainants of any rights guaranteed under either the Federal or State Constitutions.
So much is said in response to application of complainants on rehearing, and is merely an elaboration of our original holding. Entertaining the view that our original consideration of the cause is correct, the application for rehearing will be denied.
Application overruled.
BOULDIN, FOSTER, and KNIGHT, JJ., concur.