83 So. 484 | Ala. | 1919
The report of the former appeal of this cause will be found in
In another aspect the cross-bill seeks the reformation of the mortgage, to secure a note for $324, purporting to have been regularly executed by the Wilsons to Peacock on January 7, 1903, and assigned, for a valuable consideration, by Peacock to appellant on February 27, 1903. Peacock died on an unindicated date after the assignment of the mortgage to the appellant. Admitting that 40 of the 160 acres was intended to be described in the mortgage to Peacock to secure the indebtedness mentioned, the cross-complainants insist that an error was committed by the scrivener in including the remaining 120 acres (of the quarter call) in the description of the real property covered by the mortgage. In view of the conclusion prevailing on the record under review, it is, we think, unnecessary now to determine these inquiries: (a) Whether, in fact, the averred mistake in description of the property in the instrument intervened: (b) whether laches on the part of Wilson should preclude the granting of the reformation sought. The facts to be summarily stated, pleaded after remandment on previous appeal, and supported by the evidence, afford ground for the conclusion that, because of the just operation of the doctrine of estoppel the reformation prayed should not be awarded.
The mortgage to Peacock was efficiently executed by the Wilsons on January 7, 1903. On February 27, 1903, the mortgage was assigned to appellant. Wilson testified that in 1903 he became actually aware of the fact that the instrument, as recorded, described the whole of the northeast quarter of section 29, township 4, range 21, in Coffee county. He further testified that, after appellant (Henderson) sued him on the Peacock note (which action was commenced in Coffee county on July 31, 1905), he again consulted the record of the registered mortgage, and found that the record purported to reproduce the instrument as describing the whole of the quarter section. The evidence would not, in any degree, justify the conclusion that the record was not true to its original in respect of the real estate described therein. The description Wilson read in the recorded *475
instrument must be held to have been the description contained in the original. Kirkland, for and in the stead of the assignee (Henderson) of the mortgage, effectually foreclosed the mortgage, under the power therein, on April 17, 1905, and Kirkland purchased at the foreclosure sale for the benefit of the assignee, the appellant. Wilson v. Henderson,
"The plaintiff admits a credit of $200 realized from the sale of the lands conveyed by mortgage executed by defendant on January 7, 1903, to secure said note on April 17, 1905."
The note referred to in the quoted amendment was the note declared on in that action, and the date last mentioned was the date of the foreclosure sale. Wilson having, as indicated, received the competently, judicially conferred benefit of the stated credit on the mortgage debt, resulting from the unimpeached foreclosure thereof under the power to that end, and the mortgage debt having been competently, conclusively, judicially extinguished to the extent of the credit so derived and made effective, he (Wilson) became thereby estopped to subsequently invoke the reformation of the mortgage, the fore-closure of which, according to the power of sale therein conferred, produced the sum thus credited on the mortgage debt. To permit the belated reformation sought would subvert the legal, conclusive effect of a valid judgment predicated, in amount, of the theretofore accomplished fact of a completed foreclosure of the mortgage, as well as to sanction, to the advantage of Wilson, a repudiation of acts upon which the appellant, plaintiff in the mentioned suit, relied, and, so relying, conformed his conduct in a tribunal which had jurisdiction of both the parties and the subject-matter. Under familiar principles, Wilson cannot be permitted to take the benefit of the judicially concluded credit upon the debt then belonging to appellant, resulting from the foreclosure under the power in the mortgage, and repudiate, in any degree, the proceeding that produced that credit. Elementary principles of justice forbid it. The doctrine applicable is stated or illustrated in these, among other, authorities, though presenting, of course, different facts and circumstances: 10 Rawle C. L. p. 694; Sloan v. Frothingham,
The result is that the decree appealed from, dated September 24, 1918, is erroneous in the particular that it awards cross-complainants (appellees) the reformation prayed; and to that extent it is reversed. The decree is affirmed in all other respects. The cause is remanded, to the end that the court below may give effect to this opinion and award the original complainant the partition prayed.
Affirmed in part, reversed in part, and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.
