133 Ala. 453 | Ala. | 1901
Lead Opinion
The pleading of Prank Nelson whereby he sought to intervene and be made a party to the pending suit of the personal representatives of French Nabors, deceased, against Charles F. Douthit is indifferently called a “petition” and a “bill” in the case. It is of little moment whether it was the one or the other, since, whether it was a bill or a petition, we shall assume for the purposes of this appeal that Nelson had originally no right to file it in the cause mentioned and had no right to intervene in that cause for any purpose. Yet the parties to that cause had the right and power to waive their objections to his thus coming into the case, to admit and receive him as a party to it and to litigate the equity set up in his bill and to have it determined in and as a part of the suit already pending. And this they unquestionably did. The complainants in the original bill upon the filing of this bill or petition by Nelson at once answered it, admitting all its averments. And Douthit, the respondent to the original bill, soon afterwards also answered it, incorporating in his answer a demurrer which did not challenge Nelson’s right to thus come into the case, but to the contrary assumed the right on his part to have the case
This petition or bill exhibited by Nelson showed that he held the equity of redemption in the property mortgaged by Erharker et al. to Douthit, that Douthit in attempting a foreclosure of that mortgage had purchased at the sale under the power therein contained, that said Douthit had no authority to purchase at said sale, that, of consequence Nelson had a right to disaffirm said transaction at any time within two years, and thereupon to treat the mortgage to Douthit as still subsisting and to redeem the land by paying the mortgage debt, etc. That within two years after the said sale
The case thus made for Nelson was supported by the evidence. It is made to clearly appear that he seasonably announced to Douthit his election to disaffirm the sale and purchase by the latter and to redeem from the mortgage held by him, and that this declaration was accompanied by what was in legal effect a tender of the amount of money due to Douthit and claimed by him under the mortgage. Douthit denied his right' to redeem and declined to accept the tender. His right to-redeem at that time as junior mortgagee was undoubted. On this state of averment and proof, the chancery court Avas entirely justified in the decree rendered, effectuating Nelson’s equity of redemption.
The evidence relied on before the chancellor to support the exception of respondent to the register’s report Avas noted in the exception by reference to certain pages of the Avritten testimony then before the court. The paging thus used in reference is not preserved in the transcript before us; and it is not practicable for us to revieAv the conclusion of the chancellor since we-are not certainly advised as to-the evidence upon AAchich his conclusion Avas reached. Taking the statement made in the exception as indicating Avhat the evidence was, Ave are not prepared to say that the report of the register is plainly and palpably erroneous. — Speakman v. Burleson, 123 Ala. 678, 682.
The decree of the chancery court must be affirmed.
Dissenting Opinion
dissenting. — As I understand the doctrine announced in Harris v. Miller, 71 Ala. 26; Cooper v. Hornsby, Ib. 62; Thomas v. Jones, 84 Ala. 302; McCall v. Mash, 89 Ala. 487, and kindred cases, the disaffirmance treated of in the majority opinion can be made only through a court of chancery and laches will be imputed to him who seeks to avoid the sale if he thereafter waits longer than two years to sue. The sale binds the purchasing mortgagee, entitles him to possession and extinguishes the debt to the amount of his bid. It cuts off the equity of redemption and at law leaves its owner only the statutory right to redeem. — Childress v. Monette, 54 Ala. 317, and authorities supra. His right to disaffirm springs from a doctrine recognized and applied alone in courts of equity which hold the power to sell as a trust, and an authorized purchase by the trustee at his own sale as presumptively unfair and a fraud on the rights of the mortgagor. In my opinion there is no principle, either legal or equitable, which empowers the mortgagor or his vendee by his mere personal election and tender, to revive, and continue indefinitely the equity of redemption. Therefore, I do not concur in this decision.
