92 Ala. 480 | Ala. | 1890
The bill is filed by appellants, as the heirs of George W. F. Durden, against the administrators and heirs, of Mills Rogers; and seeks to redeem the lands described from a mortgage executed by Durden to Rogers, January 13,1873.. Durden died in March, 1881, and Rogers in July, 1888. The-bill is framed with a double aspect; the first being that there-was’ never any foreclosure of the mortgage, an attempted sale-under the power contained therein not having been consummated or carried into effect; and the second, that if there was such sale, the mortgagee became the purchaser at his own sale.
The evidence shows that Rogers sold the lands under the' power of sale, on the third day of December, 1881, and that in its'execution all the pre-requisites to a sale under the power were complied with; notices of the time, place and terms of sale were posted as required, and- the sale was made at the place and in the manner prescribed in the mortgage — a regular sale. If it was made in good faith and carried into effect, it operated to cut oil' complainants’ equity of redemption as effectually as a strict foreclosure by decree of a court of equity,, unless the mortgagee became the purchaser, and the complainants have seasonably disaffirmed the sale, restoring the-relation of mortgagor and mortgagee. — Harris v. Miller, 71 Ala. 33.
The first question then presented is, was Rogers the real' purchaser at his own sale ? The uncontradicted evidence shows,, that Livingston bid off the lands at the sale at the amount due on the mortgage, for himself and Saddler, by previous, arrangement between them, with which arrangement Rogers had nothing to do, except he agreed to give them reasonable time to make the payment. There was no other agreement or understanding with him in relation to.the purchase of the-lands. A few days thereafter, Livingston declined to take an. interest in the lands, and Saddler, his co-purchaser, took upon.
But appellants further contend, that though the sale may have been regular, and a third person the purchaser, a consummated sale is essential to cut oif the equity of redemption; and no deed having been executed, nor any part of the purchase-money paid and possession taken, so that either party could maintain a bill to compel specific performance, the right of complainants to redeem is the same as if there had not been an attempted foreclosure. This is not an open question in this State. It is well settled that, though the mortgage provides that the sale shall be for cash, an agreement of the mortgagee to allow time to the purchaser affords the mortgagor no ground of complaint. Such arrangement does not injure, but benefits him, its tendency being to enhance the price. The extent of his equity is to have credit for the sum bid as cash. Mahone v. Williams, 39 Ala. 202. Also, that the mortgagor
Affirmed.