65 So. 956 | Ala. | 1915
This is a bill to redeem the lands described in the bill from a mortgage or mortgages, and, as an incident to- this main purpose of the bill, the complainant prays that respondents, who are in possession of the land, be required to account to the complainant for the rents, incomes, and profits which they have received, or by the exercise of reasonable care and diligence might have received, from the land since they became possessed of it, and also- for waste which, the bill alleges, has been committed by the respondents upon the said land.
The rules which fix the liability of a mortgagee in possession to account to- the mortgagor for rents, incomes, and profits and waste are fully set out and explained by this court in the case of American Freehold Land Mortgage Co. v. Pollard, 132 Ala. 155, 32 South. 630, and need not be here repeated.
A copy of this lease is attached to the bill, and in the lease it is recited that, in consideration of “one dollar paid by said E. Y. Jones to said Mary W. Harris on this day, the said Mary W. Harris does hereby demise, lease, and farm let,” etc., the lands described in the bill for
3. The bill further shows that the said Mary W. Harías shortly after she executed the mortgage securing the $100, and before she became insane, executed her last will. By this will she devised unto complainant, her son, all of her property, and made him the executor of the will. In this will she mentions expressly the said mortgage securing the note for $100, and states that her said son had agreed to pay it. The bill shows that the said Mary W. Harris died in the insane asylum prior to the filing of the bill, and that her said will had been formally probated.
The complainant files this bill as executor and as devisee. In the bill he alleges that the mortgage securing the $200 was void because of the insanity of the mortgagor, and alleges that the sale had thereunder was “fraudulent and void.” He also alleges in the bill that the rents and profits arising from the lands and the waste committed by the respondents while in possession of the land amount to a sum in excess of the indebtedness se
4. The bill, as already stated, shows that when it was filed the complainant was not in possession of the land, but that the respondents were in the actual possession of it. The chancellor, proceeding upon the theory that the mortgage securing the $200 and the lease were void because of. the insanity of Mary W. Harris at the time of their execution, dismissed the bill for want of equity. This court has frequently laid down the proposition that a deed executed by one who is non compos mentis “is absolutely void, and passes no title to the grantee therein,” and that a bill filed for the purpose of having such a deed declared to be void on account of such insanity of the grantor, and canceled as a cloud upon the title, which shows that the complainant is not in possession of the land, but that the respondent is in possession, is without equity. In such a case the law affords a plain and adequate remedy through its action of ejectment, and there exists no necessity for equitable interposition.—Wilkinson v. Wilkinson, 129 Ala. 279, 30 South. 578; Patterson v. Simpson, 147 Ala. 550, 41 South. 842.
5. The present bill was not filed merely to have a mortgage and lease declared to be void, because of the insanity of their maker at the time of their execution, and to have them canceled as á cloud upon title. In this
“Tbe mortgagor’s right to bold tbe mortgagee to account for rents and profits of tbe mortgaged premises, or for waste done to them, must be enforced in equity, and not by suit at law. Though the rents received may be sufficient to satisfy the debt in full, the only remedy-
6. The hill in this case, it is true, alleges that, when the mortgage securing the $200 note was executed, the said first mortgage was, contemporaneously with such execution, delivered up to Mrs. Harris; hut the bill alleges that at that time Mrs. Harris tms insane. The delivery of the first mortgage to Mrs. Harris, while she was insame, cannot aid the respondents in their efforts to escape accountability for the rents, incomes, and profits, received by them from the lands, or for the waste which they have, since the execution of the first mortgage, committed upon the land. The complainant does not, as already stated, claim that Mrs. Harris ever paid the respondents a single dollar on the $100 mortgage. On the contrary he claims that, if that mortgage has in fact been paid, the payment has been through the income, rents, and profits received by the respondents from the land, and through acts of waste which they have committed upon the land. This allegation of the bill — the question as to whether this mortgage has in fact thus been paid — can only be determined upon a proper accounting in a court of equity. — 2 Jones on Mortgages, supra.
7. It is conceded, of course, that the mortgage securing the $200 note, the ten-year lease, and the sale had under that mortgage are, if the allegations in the hill as to the insanity of Mrs. Harris are true, null and void. If Mrs. Harris was insane when the second mortgage and the lease were executed, then the respondents can claim no rights through them.
9. The decree of the court below is not in accordance with the above views. The decree of the court below is therefore reversed, and the cause remanded to the court below for further proceedings in accordance with this opinion.
Reversed and remanded.