122 Ala. 518 | Ala. | 1898
— 1. The primary object of this bill is not to redeem the lands sold under foreclosure by dis-affirming the foreclosure because the mortgagee purchased at his own sale, without power in the mortgage authorizing him to do so. Its gravamen, as evidenced by its allegations and prayer is, to have the sale set aside on the alleged grounds, that Liddell & Co., who owned the mortgage by transfer and assignmnet, had no right to foreclose it and become the purchasers at the foreclosure sale, for the reason that the mortgage debt had been fully paid, and no right of foreclosure existed. The complainants ask for an account to be taken, — employing the language of the prayer, — “to ascertain whether or not anything is due on said mortgage, and if your Honor find that said mortgage has been fully paid by orators, and was paid before said mortgage sale, then your orators pray that your Honor will cancel said mortgage, and that the deed executed by William Henderson and John R. Liddell, (who composed the firm of Liddell & Co.) to Sam Jones and attached to this bill of com
2. Nick Rivers was made a party defendant by amendment, after the bill Avas filed, by striking out Aiken’s name and adding his. It is insisted on demurrer, that the right to redeem as to Rivers Avas barred, since more than íavo years had elapsed since the foreclosure, before the bill was filed. As we have shoAvn, this is not properly speaking a bill to redeem, but one to set aside a mortgage and the sale thereunder, because it had been satisfied, and no longer remained a lien on the property mentioned in it. It Avas said in Askew v. Sanders, supra, “The limitation which bars the right of relief in such case, is the same Avithin which an action
3. There is nothing in those grounds of demurrer, that question the equity of the bill for that it does not aver that complainants are in the rightful possession of the lands, since these objections in that particular proceed upon a contradiction of the plain averments of the bill. The objections are predicated upon the theory that the bill is one for removing a cloud on title. For such’ purpose, the averments of possession as made in its 15th paragraph are ample.
4. Nor are the grounds questioning the equity of the bill because Robin Dennis is not made a party defendant of any avail. It is shown he has no interest in the litigation. His tract of eighty-four and one-half acres of land was not sold by defendants in their attempted foreclosure sale, but was omitted therefrom, for the reason as stated in the bill, that the same had been sold to him by complainants, title made to him by them with the concurrence of Liddell & Oo. and the purchase money paid to them, to go to the satisfaction of the mortgage, “should anything be due thereon.”
5. We need not decide whether the record of the deed by James Bond to complainants, and of the mortgage to him from them, operated notice to Sam Jones,— to whom, after the alleged foreclosure, Liddell & Co. con- ■ veyed 450 acres of the mortgaged lands, — so that he could not plead that he was a bona fide purchaser; for, if these recorded instruments did not operate notice to him, it was unnecessary for the bill to allege that he was not a bona fide, purchaser. That is a defense which it was his province to set up and prove. — Hooper v. Strahan, 71 Ala. 75; May v. Wilkinson, 76 Ala. 543; Wood v. Holly M. Co., 100 Ala. 350.
6. The bill was amended by adding the name of Nick Rivers as a party complainant, without stating his age or residence. An infant is incapable, by himself, of exhibiting a bill, as well on account of his supposed want
For this defect in the bill the demurrer should have been sustained.
The decree of the court is reversed and one will be here rendered sustaining the demurrer to the bill for the defect pointed out, and allowing the complainants thirty days within which to amend their bill.
Reversed and rendered.