130 Ala. 502 | Ala. | 1900
The bill in this cause contains no offer to do equity, and on former appeal, this court held, that it was not subject to demurrer on that account, saying: “The fifth and sixth grounds [of demurrer] are without merit. They question the equity of the bill, for that •complainants have not offered to return or account for the proceeds of the purchase money for said lots, which inured to their benefit, and have not offered to account for the benefits received by them. How could they be required to make such an offer? It was their money that paid for property, not liable under the will to be mortgaged; and as for that part of the other property covered by-said mortgage, which might have been properly mortgaged to secure a debt of the testatrix, the only benefit complainants could have derived as to it, under said mortgage, was its extension for two years, and even that extension of the mortgage might have been a disadvantage to them. We fail to see how the bill is liable to any of the objections interposed by demurrer. The complainants were not estopped by any
The averments of the bill that the debt secured by the mortgage was the debt of the trustee, and, therefore, under the provisions of the will, was a charge upon the lot in controversy, as well as upon the entire trust estate, and that it was 'discharged and extinguished by the foreclosure sale under the mortgage, seem® to have escaped the court, and the opinion, if allowed to control the case as now presented, would lead to the result of giving the complainants an unconscionable advantage. We, therefore, must decline to 'allow it to control us on this appeal in so far as the point involving the question of benefit to complainants is concerned.
The question of benefit to complainants by the ex-tinguishment of the mortgage debt, leaving out of view the demurrer, is squarely presented on the facts, and the estoppel set up against complainants on that account as a defense in the answer. The defense of es-toppel being invoked, if it appears from the facts, that complainants are not entitled to the relief sought without being required to do equity, the court should have declined a further exercise of its jurisdiction in aid of their cause, unless they amended their bill by submitting themselves to its jurisdiction by proper aver-ments and offer. Without such an offer in the bill, the court was without power or jurisdiction 'to render a decree against them requiring them to do equity. Rogers v. Torbut, 58 Ala. 525, 526; Eslava v. Elmore, 50 Ala. 578; Smith v. Comer, 65 Ala. 376; Garland v. Watson, 74 Ala. 323, 326; Am. F. L. M. Co. v. Sewell, 92 Ala. 169, 170; Br. Bank v. Strother, 15 Ala. 51, 60.
Complainants’ testatrix, at the time of her death, was largely indebted, and the trustee, under the authority conferred upon him by the will, in 1889. borrowed from one Hirsh $12,500 which he secured by a mortgage, on a lot which was owned by the testatrix at the date of her death. This money was used exclusively by the trustee in paying debts of the testatrix. The law day
While it is doubtless true, in the absence of proof .that the sale of the lot under the mortgage was to the interest of the estate of the infant complainants, the court is not in a position to elect for them, still if the proof had' been made that an avoidance would be to their advantage, the court must refuse to avoid the transaction, without the power to mold its decree so as not to allow them the unfair advantage of avoiding it while retaining its fruits.—Goodman v. Winter, supra; Hobbs v. N. C. & St. L. R’y, supra.
But it is urged that as the sale under the mortgage was valid as to one lot and voidable as to the one here involved, that the doctrine of the cases cited above has no application. This contention is based upon the proposition that there is no evidence that the bid of the purchaser at the foreclosure sale was increased by reason of the lot here involved being included in the purchase. It would be strange, indeed, that Hirsh, the mortgagee, consented to an extension of his debt upon condition that this lot be put in the mortgage if he regarded it as valueless, and that he would, after purchasing it, sell it, executing a warranty title to it. It is further urged in support of the contention, even if there was such evidence, there would be no means by which it could be ascertained to what extent the bid was so ■ increased. One of the principles underlying the doctrine in the cases cited is, that the purchaser, notwithstanding the sale is void or voidable, will be protected when he has in good faith acted upon the transaction as valid. It is of no consequence, that he could have known that he was not acquiring a title. For, in all of the cases cited, it was affirmed, that the purchaser acquired no title. This they were bound to have known, for the reason that the defect which rendered their conveyances in
As the infant complainants have no right of election, and as it must be exercised for them by the court, and since the court has not had an opportunity to do so, we will dismiss the bill, but it must be without prejudice to their rights to file another if they are so advised. However, as to the adult complainant, he having the right to elect for himself, within a reasonable time, to avoid the transaction and restitution not being proffered by him in the bill, it must be dismissed.—Davis v. Gaines, supra. A majority of the court, however, are of the opinion that the bill should be dismissed without prejudice as to all the complainants and it is so ordered.
Beversed and rendered.