74 Ala. 323 | Ala. | 1883
— Garland executed a mortgage to Watson, with power of sale, the subject of the mortgage being lands. Watson sold under the power contained in his mortgage, after due advertisement, and himself became the purchaser. He thereupon, describing himself as mortgagee, conveyed the lands to himself as an individual. In less than twelve months after-wards, Garland filed this bill to disaffirm the sale.
It is too well settled by the decisions of this court to require further argument, that when a mortgagee of lands sells under the power contained in the mortgage, and becomes the purchaser at his own sale, he arms the mortgagor with the option, if expressed in a reasonable .time, of affirming or disaffirming the sale, and this without any reference to the fairness of the sale, or the fullness of the price. — James v. James, 55 Ala. 525; McLean v. Presley, 56 Ala. 211; McGehee v. Lehman, 65 Ala. 316; Dozier v. Mitchell, Ib. 511; Harris v. Miller, 71 Ala. 26; Bush v. Sherman, 80 Ill. 160. The present bill was filed in time, and the record fails to show the mortgagor had done any thing to estop him from asserting his election to disaffirm the sale.
The object and prayer of the present bill are simply to dis-affirm and set aside the sale. There is neither averment nor prayer which reaches beyond that single purpose. Nothing said as to the state of the account, or payments on the mortgage ; no tender or offer to pay what may be due; no offer to redeem, or otherwise to do equity. A bill for such a purpose can not be maintained. — 2 Jones on Mortgages, §§ 1052, 1077, 1093 to 1096, 1921; Rogers v. Torbut, 58 Ala. 523; Grigg v. Banks, 59 Ala. 311; McGehee v. Lehman, 65 Ala. 316; Smith v. Conner, 65 Ala. 371; Dozier v. Mitchell, Ib. 511; Collins v. Riggs, 14 Ala. 491; Post v. Bank of Utica, 7 Hill, (N. Y.).
There is a class of cases, in which a bill filed by a mortgagor, either to redeem, or to obtain other equitable relief, may result in ascertaining the true amount due on the mortgage; and if the sum thus ascertained to be due be notpaid by a day named in the decree, there may be a sale of the land, for the payment of the sum decreed. Decrees have been rendered in this alternative form, and we will not inquire into their soundness. But, to maintain such bill, there must be an offer to do equity, by tender, or in some other equitable form, and the complainant, by his averments and offer, must submit himself to the jurisdiction of the court, so that proper decree can be rendered against him, without a cross-bill.-Rogers v. Torbut, 58 Ala. 523; Andrews v. Hobson, 23 Ala. 219; Charles v. Du Bose, 29 Ala. 367; McLean v. Presley, 56 Ala. 211; Downs v. Hopkins, 65 Ala. 508; Mooney v. Walter, 69 Ala. 75. The present bill is not brought within this rule. The result is, the complainant has shown no title to relief.-1 Dan. Ch. Prac. 330.
We Will so far modify the decree, as to make it a dismissal without prejudice.-Taylor v. Robinson, 69 Ala. 269. As amended, the decree of the chancellor must be affirmed.
