98 So. 303 | Ala. | 1923
The question of redemption under the statute has been given recent consideration by this court. Allison v. Cody,
In the Allison-Cody Case, supra, it is stated that a valid foreclosure extinguishes the equity of redemption (Dinkins v. Latham,
The writer did not participate in the decision of Grace v. Montgomery,
If the foreclosure of the Foreman mortgage by the conveyance had terminated the equitable right of redemption of the junior mortgagees, the result urged by appellants' counsel would obtain; but such foreclosure of the equity of redemption, as to the interest of the junior mortgagees, was not the result of the private agreement or of the arrangements of the mortgagor and assignee of the senior mortgagee — and contrary rulings on demurrer to the cross-bill are in error.
It should be said that Mrs. Martin had the right to acquire the title of Foreman, the senior mortgagee, and the fact that she may not have paid full value for the same, or that of the lands secured thereby (Ward v. Ward,
A purchaser pendente lite is bound by the proceeding, under the principle of lis pendens Rudisill Co. v. Eastham Co. (Ala.)
Under the facts averred in the original and cross bills, a complete and adequate remedy, as affecting the respective interests of the parties, does not exist at law — a court of equity only can fully determine the respective contentions of the parties and enforce their respective interests or equities in the lands in the order and amounts of the priorities after a declaration thereof and after a just and true accounting and ascertainment of the same. There was error in sustaining the demurrer of respondents (complainants in original bill) in the cross-bill challenged by the fourth and fifth grounds of assignment. The complainants in the cross-bill (respondents in the original bill) had the equitable right of redemption from the senior mortgagee or assignee, upon paying all just sums and lawful charges due thereon. This it is duly alleged that "they are ready, able and willing to pay the debt and all lawful charges and hereby offer to do so." The averment of fact in the cross-bill and in the whole prayer thereof does not attack the validity of the Foreman mortgage or the superiority of the lien thereunder in the assignee, but only the subsequent proceeding, and conveyances are sought to be defined and limited as tending to give any right, title, or interest in the properties that would prevent redemption of the equity and foreclosure thereof by the junior mortgagee. Fouche v. Swain,
It is conceded by counsel for appellants that there was no error in sustaining demurrer to that phase of the cross-bill seeking recovery of attorneys' fees for foreclosing the mortgage; for if the property is sold it will be under the original bill to the satisfaction of the respective debts and liens securing the same, and as to this the decree of the chancellor is affirmed.
The decree of the circuit court, in equity, is affirmed in part, reversed in part, and the cause is remanded. The appellants are taxed with one-third of the costs of the appeal, and appellee is taxed with two-thirds of the costs of the appeal.
Affirmed in part, reversed in part, and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.