166 So. 409 | Ala. | 1936
The appellant insists that the facts alleged sustain the equity of the bill, as one to prevent an unwarranted abuse of the power of sale in violation of the trust arising therefrom, by sacrificing the mortgaged property at a mass sale, instead of selling in separate parcels. A sufficient answer to this contention is, that the bill does not aver that the mortgagee is threatening or intends to sell the property en masse, or that the mortgagee has been requested to sell the property in separate parcels or tracts and has refused such request. It is not averred that by a sale of the property in separate parcels it will bring a better price than if sold en masse. We have not overlooked the averment in the bill as last amended, "that if the sale of said lands was marshalled, and they were sold in parcels, they would probably sell for materially more than if said property *25 was sold in lump, first, because of the scarcity of persons who would be either willing or able to buy the property." This averment, assuming it is sufficiently positive that a sale in parcels would be beneficial to the mortgagor, is coupled with another ill-grounded theory of the bill's equity — the marshaling of assets of the debtor at his instance.
To warrant interference by a court of equity with the right of foreclosure, facts must be alleged showing that the mortgagee is perverting the power from its legitimate purpose. Caldwell v. Caldwell,
Taking, as true, the statement in the advertisement of the sale — "This sale will be made for the purpose of realizing the mortgage debt, together with all expenses of the sale and a reasonable attorney's fee" — it will be assumed, in the absence of positive averments to the contrary, that the mortgagee intends to offer the property for sale in such sort as that it will not be unwarrantedly sacrificed. Moreover, assuming that the several parcels or tracts of land covered by the mortgage are so situated that they can be conveniently sold and conveyed separately, or that the land has been laid off in parcels for separate and distinct enjoyment, if the mortgagee abuses the power of sale and sacrifices the property by a sale en masse, the mortgagor has his remedy in equity. Dozier v. Farrior et al.,
Appellant's second contention is, that the mortgagor, by conveying a part of the mortgaged property to the Bay Minette Land Company in consideration, in part, of the assumption of the mortgage debt to the bank, the land company became the principal debtor and the mortgagor the surety and as such he had the right, in equity, to compel the mortgagee, in foreclosing its mortgage, to first exhaust the property conveyed to the land company before selling the property retained or previously conveyed by the mortgagor. That the authorities cited by the appellant (and noted hereunder) to sustain this contention establish the principle, that in such circumstances the relation of principal and surety is created as between the mortgagor and his grantee, and that the mortgagor is the surety, is without question. 2 Pomeroy Eq.Jurisdiction, 797, dealing with the doctrine of merger.
Interstate Land Investment Co. v. Logan,
Maulitz v. Jones,
The Farmers' Savings Building Loan Association v. Kent
Sabotka,
Whittle v. Clark et al.,
"Whether the defendant purchased the property, assuming the payment of the first mortgage, and thereafter sold the property to Thornton and wife, is not averred in the bill, though this is stated by appellees in their brief and argument.
"If these are the true facts of the case, the defendant by such assumption of the first mortgage debt became primarily liable *26
therefor, and the complainants were liable merely as sureties. Robson v. O'Toole et al.,
"And in an action at law by the defendant, on the notes representing the mortgage debt, complainants could plead this assumption of the debt by the defendant in bar of the action. People's Sav. Bank v. Jordan, supra; Mitchell v. Hickman, supra.
"Yet in the absence of suit to enforce the collection of the notes, and in the face of a demand by the defendant for the payment accompanied by threats to sue thereon, the complainants may invoke the aid of a court of equity, by bill in the nature of a bill quia timet, to have the notes and mortgage canceled and surrendered, and remove the burden and cloud hanging over them as sureties. Segall et al. v. Loeb et al. [
"If, however, the defendant did not assume the payment of the debt secured by the first mortgage, though it was assumed by his predecessors in title, the complainants would still be liable on their obligation; and, upon payment of the debt, the complainants, as sureties of those who had assumed its payment, would be entitled to be subrogated to the security afforded by the mortgage and have it enforced against the property (Cullum v. Emanuel Gaines et al.,
In Rogers et ux. v. Piland,
In Dedrick et al. v. Den Bleyker,
2 Wiltsie on Mortgage Foreclosure, Fourth Edition, § 864, merely states the general principle that "Where it isinequitable and wrongful that a mortgagee should sell the property under a power of sale contained in the instrument, an injunction restraining such sale may be granted on the application of the mortgagor or of any other person interested in preventing the sale." (Italics supplied.)
These authorities fall far short of justifying the application of that principle to the facts alleged in the bill. To state the proposition in other words, the averments of the bill fall far short of showing that the mortgagee is proceeding "inequitably and wrongfully."
In the circumstances alleged in the bill, either the mortgagor or his grantee, the land company, who had assumed the debt, had the right to pay the interest on the loan, and the mortgagee could not refuse to accept such payment. But the fact that the mortgagee had knowledge of the relation and accepted payment of interest from the land company did not destroy the right of the mortgagee to assert that both the principal and surety were primarily liable, and proceed against them jointly or severally at its election. Code 1923, § 9543; Tennessee Valley Bank et al. v. Sewell,
In the case last cited (Whittle v. Clark et al.), it was held that the mortgagors could not "compel the creditor, in the absence of statute, to proceed against the principal or the property and relieve them [the mortgagors] from liability."
The appellant's third and last contention is, that the facts stated give the bill equity as one to compel a marshaling of the property, and compel the mortgagee to sell it in the inverse order of its alienation by the mortgagor.
The doctrine of marshaling assets is "the creature of equity — called into exercise by, and for the benefit of the creditor who is to be profited by it." Turner v. Flinn et al.,
Our conclusion, therefore, is, taking the averments of the bill as true, it is without equity, and the demurrer for want of equity, was well sustained.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
