47 So. 242 | Ala. | 1908
— This is the second appeal in this cause, and, since the important facts involved are set forth in the report on the former appeal, we will not repeat them. —Pitts v. Morgage Co., 123 Ala. 469, 26 South. 286. The foreclosure of the mortgage, in conformity to the power therein conferred, by a sale of the 680 acres described in the instrument, operated to effect- ■
It was formerly and correctly ruled.that, as to the 480 acres, since John W. Pitts did not seasonably assert his right to disaffirm and redeem, the purchasing mortgagee took such title therein as that complainants, who had no interest in the 480 acres, had no right, against the election of the mortgagee to retain that tract, to defeat or divest. This being true, no reason has or can be given why, by the same token, the purchasing mortgagee did not take a like title in and to the life estate held by John W. Pitts, at the time of foreclosure, in the equity of redemption in the 200 acres, in which complainants, as heirs at law of their deceased mother, possessed the remainded. This life estate, held by Mr. Pitts, was just as separate and separable, and just as free from control of the remaindermen in respect of disposition or con veyance by him, as the title or right possessed by Mr. Pitts in and to the 480 acres; and Mr. Pitts failure to seasonably disaffirm and to redeem this life estate resulted, unless the mortgagee otherwise elected, in clothing it with an indefeasible title thereto against these complainants.
The complainants having the right to redeem to the extent of their remainder interest in the equity of redemption in the 200 acres, as was decided before, the respondent takes the point, and stresses it, that this right in the remaindermen cannot be appropriately exercised until the falling in of the life estate. The bill was filed August 18,1898, and the foreclosure sale was effected March 22, 1892. We do not think respondent’s contention can be sustained. It has been lone1 settled kero
The result of a warrantable disaffirmance of such a sale is to restore the status existing before foreclosure and to reinvest the disaffirmer, who must have a right injuriously effected by the foreclosure, with his equity to redeem, which, until disaffimance, is effectually cut off by the sale. —Mc Call v. Marsh, 89 Ala. 487, 7 South. 770, 18 Am. St. Rep. 145. While the right to disaffirm arises, and can only in such cases arise, out of the right to redeem, the former “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.” McCall v. Marsh, Supra. The right is hence, not an estate or interest in the land in which the proposed redemptioner had an estate or interest capable of being prejudiced by the foreclosure sale. Accordingly it is clear that the right to disaffirm does not partake of the nature of the estate or interest giving rise to it, but is the product of the trust relation under which the vending mortgagee performs the duty raised by the terms of the instrument of mortgagee with due regard to the interests of his cestuis que trust. It
Without pursuing the subject at greater length, we think there can be no doubt but that the time for disaffirmance accrues to one having a property right injuriously affected by the foreclosure immediately upon the sale, and unless the election to avoid the sale is made within the requisite period it is irrevocably lost. We are therefore of the opinion that complainants bill was properly and seasonably filed. But, of course, it does not folloAv that, though disaffirmance and redemption by a remainderman to the extent of his interest in the property is accomplished, the full enjoyment of the life estate by the owner thereof is thereby qualified. The foreclosure sale and effected disaffirmance and redemption by the remainderman will not quicken the postponed (until the termination of the life estate) enjoyment of the remainder by those thereunto entitled.
As we construe the decree of February 15, 1901, the lower court correctly determined the general equities and rights of the parties. However, the report of the register should not have been confirmed over the exceptions thereto in the respects pertinent to the proper method of ascertainment of the sum to be paid by the complainants in order that redemption of their remainder might be effected. The purchase by the respondent, on March 22, 1892, of the 480 acres, found by the register to be then of the value of $2,400, was a payment pro tanto of the mortgage debt, principal and interest and attorney’s fees and costs of foreclosure, to March 22, 1892; and to said $2,400', as such payment, should be, upon reference, ascertained and added, as of March 22,
The decree is affirmed in the respect it confirmed the report of the register in his ascertainment of the several values of the two tracts involved, and also in respect of the waste suffered or committed by the life teant (respondent) ; but the decree is reversed, as indicated, since it erroneously declares the aggregate sum to be paid by complainants to redeem the remainder in question. And it follows that the dismissal of the bill upon failure to effect the redemption by payment of the erroneous sum required is reversed. The general rules for the control of accountings on disaffirmance and ¡redemption, between purchasing mortgagees and mortgagors, or their
Reversed and remanded.
