69 So. 483 | Ala. | 1915
Lead Opinion
The original bill in this case was filed September 3, 1897. It sought, in the alternative:
When tbe case went back, tbe bill was amended several times, by alleging that tbe complainants were in possession when tbe bill was filed, that tbe mortgage debt was tainted with usury, that tbe purchase price was grossly inadequate, that Drum & Ezekiel bad sold and conveyed tbe lands to Greil Bros., a corporation, and that Drum & Ezekiel bad no just interest in tbe land. Tbe respondents demurred, and answered tbe bill, denying each of tbe asserted equities of tbe bill. Tbe case was submitted on tbe pleadings and tbe proof, and tbe chancellor granted tbe relief on tbe theory that complainants have tbe right to redeem, but denied tbe relief as for canceling tbe deed as a cloud on title. Prom this decree tbe respondents prosecuted this appeal.
The chancellor finds that the mortgage debt was paid at the time of the foreclosure. If so, then there can be no redemption, and the only possible relief in chancery would be to have the deed canceled as a cloud on title; and as to this the chancellor finds that complainants were not in possession when the bill was filed, and therefore that they cannot have the deed canceled as a cloud on title. This was also the holding on the former appeal.
Rehearing
Conceding, without deciding, that this defense would not have been availing in a court of law when the bill was filed in September, 1897, it cannot effect the result in this decision, for the reason that this insistence must concede that the foreclosure was only voidable, and not void, and that to maintain a bill to avoid the sale and cancel the deed it must be filed within two years next after the sale, or some valid excuse must be shown why it was not filed within such time. No such reason was shown, and it is conceded that the bill was not filed within the two years. This was expressly ruled and decided on the former appeal, and we now adhere to it. As the opinion in that case was not officially reported, and we think it is conclusive on this appeal (if the plaintiffs had not such possession, when the bill was filed, as would authorize a bill to remove a cloud on title, which fact the chancellor found, and to which finding we agreed), we will here quote that
“If the .bill be treated as one to redeem under the statute, more than two years have elapsed since the foreclosure of the mortgage under the power contained in it, and the right was therefore lost. — Code 1896, § 3505, and authorities thereunder.
“If the mortgage was fully paid at the time it is alleged it was foreclosed, the attempted foreclosure was void, and the complainant had a plain and adequate remedy at law by ejectment for the lands, and a court of equity Avould not intervene under such circumstances. —Code 1896, §§ 1067, 1547; Watson v. Herring, 115 Ala. 71, 2 South. 28; Curry v. Peebles, 83 Ala. 225, 3 South. 622.”