Lovelace v. Hutchinson, 106 Ala. 417

Lovelace v. Hutchinson

106 Ala. 417 | Ala. | 1894

HARALSON, J.

— 1. The bill shows that James Jun-kins, the mortgagor, died testate in the year 1874, having previously, on the 9th of January, 1874, executed and delivered a mortgage on his lands and personal property to Crenshaw, Lovelace & Co.; and after his death, the mortgagees having advertised the property for sale, sold it under their mortgage, on the 15th January, 1875, and themselves became the -purchasers thereof, and immediately took and retained possession of it, receiving rents and profits therefrom ; that Crenshaw retired from said firm, and J. B. and C. W. Lovelace succeeded to all his rights and interests in said partnership, and that in the year 1884, the said J. B. and C. W. Lovelace conveyed the lands to George Hellen and Spencer Tabb, for a recited consideration of $800. A copy of the deed is attached to the bill, and recites a sale made as for the foreclosure of said mortgage. The sale made by the mortgagees in January, 1875, was a full execution of the power of foreclosure of the mortgage, and the mortgagees could not again sell under the.same power; so that, the sale to Hellen and Tabb in 1884, derived no force as having been made under" said mortgage, and was no more than any other private sale. — Harris v. Miller, 71 Ala. 27; Comer v. Sheehan, 74 Ala. 452.

2. Where a mortgagee purchases at his own sale, without the consent of the mortgagor, or not being authorized by the terms of the mortgage, the mortgagor, or persons claiming under him in privity, may disaffirm the sale and redeem; the election to do so being seasonably expressed. — American F. L. M. Co. v. Sewell, 92 Ala. 163; McCall v. Mash, 89 Ala. 488; Thomas v. Jones, 84 Ala. 302. As to them, in such case, until barred of their election to redeem, the mortgage has not been absolutely and finally foreclosed, and the mortgagor, or those succeeding to his estate, continue, in contemplation of equity, to be the real owners of the fee. From this theory, indulged by courts of equity, results the principle, •'‘that a mortgagee who comes into the possession of the property mortgaged, whether before or after default in the payment of the mortgage debt, and before the mortgage has been foreclosed, is a trustee of the mortgagor of the rents and profits, and is bound to apply them in extinguishment of a mortgage debt.” — Davis v. *423Lassiter, 20 Ala. 561; Blum v. Mitchell, 59 Ala. 538 ; Toomer v. Randolph, 60 Ala. 360.

3. The bill alleges, that the conveyance by said J. B. and C. W. Lovelace to said Hellen and Tabb, was made without any consideration; that for all the time they remained in possession of the lands they paid rents to said J: B. and C. W. Lovelace, and that said deed to them is fraudulent and void, as against complainants. It is further averred, that Hellen and Tabb, on the 25th of September, 1890, conveyed said lands to D. J. Castle-man, for a recited consideration of a past due debt, and it is averred further that no consideration passed at all, from the grantee to the said grantors, and that said deed is fraudulent and void as to complainants: If these averments are true, these conveyances do not stand in the way of the redemption of said lands by complainants.

4. Nor is the ground of demurrer, that the administrator and heirs of John Junkins are not made parties to the bill of any avail. Redemption is sought of other lands, besides the eighty acres devised by the testator, James Junkins, to him,' — there being 173 acres in all. Resides, the eighty acres were devised to said John Junkins for and during his lifetime, only, and after-wards, to complainants, or to the same devisees to whom the remainder of the 173 acres were devised. Complainants have nothing to do with the administrator or heirs of John Junkins, in respect to any interest they may be able to assert or maintain for rents and profits of said eighty acres, devised to said John Junkins during his life. Complainants are certainly entitled to rents of the eighty acres, after his death, while the land was in the possession of said Lovelaces.

5. The case of Alexander v. Hill, 88 Ala. 487, settles the rights of such of the complainants as were minors to file this bill. They claim as devisees of said James Junkins. No presumption from mere lapse of time, short of twenty years can be indulged, that complainants — except Martha Hutchinson — who were not sui juris, had ratified and affirmed a sale made under the circumstances shown in this bill. The ages of all the complainants, except that of Mrs. Hutchinson are stated, and as to her age, there is no information given, further than that she was over twenty-one, at the date of the filing of the bill. The will of James Junkins was executed the-*4249th. day of January, 1874, and she is named with complainants, as a devisee therein, and of these lands. The bill appears to have been filed, 26th October, 1891. Herbert Hill, one of the original devisees, is not made a party, because, as stated, he is barred by the statute of limitation. Martha’s name is mentioned in the will, next after Herbert’s. If she had two years after her majority, and before the institution of this suit, within which to disaffirm the sale under said mortgage, she was barred as to her right to redeem, and ought, not to have been made a party complainant. It became her, under the circumstances, to show that she was not guilty of laches in bringing the suit. The only attempt to do so, is in the general allegation as to all the complainants, that at the time of the transactions referred to in the bill, in 1874-5, they were minors of tender years, without any regular guardian to' look after their affairs and interests, and that they had no knowledge of the same until only recently, when they made inquiry of friends, who informed them of the facts set forth in the bill. This is not sufficient. It is not- an averment that she was an infant at a later date than that transaction oc-. curred. Such an averment standing alone and unaided,, would not convey the idea that she remained an infant up to any particular date. Averment and proof of the fact of infancy at a particular date will not authorize the presumption of a continuous state of infancy at a later date. Age changes at every moment of succeeding time. For aught appearing, she may have beeh twenty-one for more than two years, when this suit was instituted.

The rule is well settled, that if the case stated in a bill is prima facie within the bar of the statute of limitations, or offensive to the peculiar rules which a court of equity adopts for the discouragement of stale demands, objection on that ground may be taken by demurrer. The complainant, Martha Hutchinson, then, has not brought herself withi'n the principles on which the right to relief is founded. — James v. James, 55 Ala. 533; 3 Brick. Dig., 366, § 468. The rule is also recognized, in equity as at law, that all the parties who join in a suit must be entitled to recover, or none . can. If any one of the plaintiffs is incompetent to sue, the only remedy of the parties plaintiff in such a case is to *425amend by striking out tbe name of the one who had no cause of action. — McLeod v. McLeod, 72 Ala. 45 ; Taylor v. Robinson, 69 Ala. 269; Hutton v. Williams, 60 Ala. 107 ; James v. James, 55 Ala. 533 ; Hardeman v. Sims, 3 Ala. 747.

There was no error in overruling the demurrer on any of the grounds, except in the matter of laches as applicable to Mrs. Martha Hutchinson, and for this the decree of the court must be reversed.

Reversed and remanded.