89 Ala. 487 | Ala. | 1889
While the equity of redemption constitutes the beneficial estate of the mortgagor in the land subject to the incumbrance, and, being regarded a valuable right and property, may be conveyed in the same manner as the land itself, clothing the grantee with the right to discharge the incumbrance, so that the estate may be rendered valuable and beneficial; yet, in order to be the proper subject of conveyance, it must be a subsisting estate and interest, and the right of redemption must be exercised while the mortgage is redeemable, before a foreclosure by decree of the court, or by- sale under power contained therein. A seeming; but not real, exception to this general rule is, where the mortgagee purchases at his own sale, without the consent of the mortgagor. In such case, the mortgagor, or persons claiming under him in privity, may disaffirm the sale and redeem, the election to do so being seasonably expressed. — Thomas v. Jones, 84 Ala. 302; Downs v. Hopkins, 65 Ala. 508.
Under a power of sale contained in a mortgage executed by S. P. McCall, in May, 1886, to Nathan Mash, the mortgagee sold the lands conveyed thereby, and became the purchaser at the sale. After the sale, and without taking any steps to disaffirm it, the mortgagor sold and conveyed the
At law, the sale, if it has been regular and without fraud, is valid, the mortgagee being regarded as clothed with the legal estate. The sale can be disaffirmed only in a court of •equity. That which remains in the mortgagor, therefore, lies in action, a mere right to sue. A right which exists only in action is incapable of assignment and conveyance, so as to authorize the assignee to sue in his own name. The complainant took no estate in the lands by the conveyance
Affirmed.