103 Ala. 289 | Ala. | 1893
The primary question raised upon the recordáis whether the decree of the judge of the city court of Montgomery, sitting as a chancellor, rendered on the 20th day of January, 1886, relieving the appellant, Rebecca M. Pollard, from the disabilities of coverture, is valid, empowering her to execute the mortgage under which the appellee deduces title to the lands in controversy. The city court had and has, within the county of Montgomery, concurrent jurisdiction with the court of chancery; and to the judge of the court there is an express grant of “all the powers exercised now, or hereafter tobe exercised by the chancellors of this State.” Pamph. Acts, 1880-81, p. 267. The validity of the decree must, therefore, be subjected to the same tests, to which it would have been subjected, if it had been rendered by a chancellor. A statute of force at the time of the rendition of the decree, authorized the several chancellors, sitting in term time or in vacation, “to relieve married women of the disabilities of coverture as to their
The uniform construction of the statute, while of force, was that it was a delegation to the chancellor, not to the court of chancery, of a power inherent in the General Assembly, and which without express legislative grant, no judicial officer or tribunal, could rightfully exercise. Being strictly a statutory power, without the ordinary, usual sphere of judicial power, in its exercise the chancellor was bounded and limited by the terms of the statute. The indispensable prerequisite to the exercise of the power, was the petition, complaint or application of á married woman, showing her residence in the chancery district, alleging that she had a statutory or other separate estate, and praying the relief the chancellor had authority to grant. — Ashford v. Watkins, 70 Ala. 156; Cohen v. Wollner, 72 Ala. 233; Doev. Burke, 74 Ala. 530; Falk v. Hecht, 75 Ala. 293 ; King v. Bolling, Ib. 306 ; Meyer v. Sulzbacher, 76 Ala. 120; Hatcher v. Diggs, Ib. 189.
A petition was filed by Mrs. Pollard, the sufficiency of which in every respect, to call into exercise the power or jurisdiction of the judge of the city court, has not been and can not be questioned. It contains the averment of every material fact, rendering it the duty of the judge of the city court to enter upon the inquiry, whether the decree the statute authorized him to render, should or should not be rendered. It was accompanied by the assent in writing of the husband to the grant of the prayer of the petition. The decree, the validity of which is now assailed, was rendered, and it grants, in the terms of the statute, the precise relief the judge had authority to grant.
'It is also contended that as the decree does not affirm that Mrs. Pollard had a statutory or other separate estate, it is essential that there should appear of record evidence of the fact. If there was in the contention any force, the answer could well be. made, that there does appear of record evidence of the fact; the evidence which the statute contemplated, and intended should be conclusive. The wife and husband were the only parties to the pro
The final contention is, that the decree was signed by the judge before the petition was filed in the office of the register, and is of consequence a nullity.' The force of this contention is not very apparent, if it had been made in a direct proceeding to reverse" or vacate the decree, and not collaterally, when every reasonable intendment, consistent with the record, must be made to support it. The petition was filed in the office of the register, and of the fact he made a formal endorsement upon it, designating the hour of the day on which he received it. Prom some cause, perhaps mere inadvertence, or it may be because he regarded! the petition and decree as constituting together the'file, it was his duty to keep and record, there is not a like endorsement upon the decree. The decree bears the same date, refers to and recites much of the substance ofthe petition, manifesting its existence, and that it was the present, immediate subject of judicial consideration, upon which the judge pronounced the definite, final sentence or judgment. If this was a direct proceeding for the reversal or vacation of the decree, and it was conceded that the petition must have been filed (by which we mean no more than that it must have been delivered into the official custody of the register) prior to the signing of the decree, there could bo no hesitancy,
The petition must have been in existence, present and open to the consideration of the chancellor or judge, before the rendition of the decree. It was the petition alleging the existence of the material facts which conferred the statutory jurisdiction or power. And the petition must have been filed in the office of the register in chancery, of the chancery district of - the residence of the petitioner. This, however, is not saying that the filing of the petition must have preceded the signing of the decree. If that were true, the inquiry would at once arise, what appreciable point of time must have intervened between the filing of the petition and the signing of the decree? Would one hour, or one minute, have sufficed? It was not a very formal proceeding the statute authorized and contemplated. It was intended to be simple, speedy and inexpensive ; and if husband and wife concurred in the granting of the prayer of the petition, there was no duty for the register to perform, other than receiving the petition and the decree when delivered to him, and the record of them. The power or jurisdiction of the judge was as capable of exercise in vacation, as in term time ; and it could not have been of infrequent occurrence, that the petition was presented, examined and considered, and the decree signed, before the formal filing of the petition in the office of the register, and until the petition and the decree were filed in the office of the register, the decree was not operative ; it was not a judgment or decree; but when they were filed, the decree became operative, changing the status of the wife, and investing her with the capacity and power expressed in the statute. A construction of the statute, which would make the precedent filing of the petition in the office of the register, when husband and wife concurred in the granting of the prayer of the petition, an element of jurisdiction, would not be in accordance with the words, spirit, and policy of the statute, and would convert a mere ceremony into matter of substance.
The petition and decree having been filed in the office of the register for record, became a record of absolute,
A mortgagee having power to foreclose by sale, unless the right is conferred by the power, can not, at the sale, make a valid purchase directly, or indirectly through the agency of another. The purchase is not absolutely void — it is binding on the mortgagee — and is voidable only at the election of the mortgagor, or of whoever may have succeeded to the equity of redemption, seasonably expressed. — Knox v. Armistead, 87 Ala. 511. The election residing in the mortgagor, or the holder of the equity of redemption, operates to embarrass the title of the mortgagee, rendering it doubtful and uncertain in duration. For his relief, courts of equity in this State entertain bills to require the mortgagor, or whoever may have succeeded to the equity of redemption, to manifest and exercise the election to affirm or disaffirm the purchase. — McLean v. Presley, 56 Ala. 211; Harris v. Miller, 71 Ala. 26 ; McHan v. Ordway, 76 Ala. 347 ; Craddock v. Am. Mortgage Co., 88 Ala. 281; Am. Mortgage Co. v. Sewell, 92 Ala. 163.
The purpose of the present bill is to require a junior mortgagee and the mortgagors to elect an avoidance or
If the election be of affirmance of the purchase, the duty devolves on the mortgagee to account for and apply the purchase money, as he would have been bound to account for and apply it, if a stranger had become the purchaser, and from him the purchase money had been received. This is the corresponding right and equity of the mortgagor, or the owner of the equity of redemption, and it must be conceded by the mortgagee, for it is only upon the condition of its concession, that the court can intervene for his relief.
The original and amended bills show that the principal and interest of the mortgage debt, at the time of the foreclosure sale, were twenty-three thousand, one hundred and thirty-three 60-100 dollars; and that the purchase money was twenty-five thousand, four hundred and fifty-seven 40-100 dollars, the purchase money exceeding the debt and interest, twenty-three hundred and twenty-three 80-100 dollars. The bill alleges that the costs attending the sale, and the fees of attorneys employed by the complainant to superintend the sale and for the filing of the present bill, exceed twenty-seven hundred dollars, and asserts the right to apply the surplus or excess of the purchase money to the payment of these costs and fees. The answers of the mortgagors put in issue these allegations as to the costs of the sale and fees of the attorneys, and there was no evidence introduced to support them. It is obvious the city court erred in decreeing a confirmation of the purchase in the absence of such evidence. Without evidence, it ought not to have been assumed the allegations of the bill were true, nor ought it to have been assumed that the costs attending the sale and fees claimed were necessary and reasonable.
The mortgage contains a stipulation in these words : “That if it shall become necessary to employ an attorney to foreclose this mortgage, or collect any part of the debt herein secured, they,” (the mortgagors) “will pay such reasonable attorney’s fees, and all other lawful and
A stipulation in a mortgage binding the mortgagor to the payment of a reasonable attorney’s fee the mortgagee may incur in the foreclosure by a sale under the power, or by a foreclosure in equity, is recognized as valid by repeated decisions of this court. — Munter v. Linn, 61 Ala. 492 ; Bynum v. Frederick, 81 Ala. 489 ; Lehman v. Comer, 89 Ala. 579; Speakman v. Oaks, 97 Ala. 503; Boyd v. Jones, 96 Ala. 305 ; McCall v. Am. Mortgage Co., 99 Ala. 427. The stipulations by their terms relate to two events in which the mortgagors are to be liable for the fees of the attorney of the mortgagee. The first did not occur; the foreclosure was by the exercise of the power of sale. If there had been a foreclosure by bill in equity, the mortgagee would not have been entitled -to charge the mortgagors with counsel fees, unless the bill had shown more than the mere default in the payment of the mortgage debt. — Bedell v. New England Mortgage Co., 91 Ala. 325 ; Am. Mortgage Co. v. McCall, 96 Ala. 200. There is no justor reasonable construction of the stipulation which would entitle the mortgagee to compensation for the fees of attorneys he may have become liable to pay in and about the prosecution of this suit. It is not the kind or character of suit which falls within the terms of the stipulation, or which may be supposed to have been within the contemplation of the parties. The default of the mortgagors did not give rise to, or create the necessity for it. The defective foreclosure, from which the necessity or occasion for it arises, was the act of the mortgagee, the responsibility of which was voluntarily assumed, and can not be shifted to the mortgagors, who were, as was with them a matter of right, merely passive. — Clark v. Stilson, 36 Mich. 482. The decree of the city court in its results fixes upon the mortgagors a liability for this fee as it is claimed by the bill; a liability which could not have been fixed, if there had been full evi
There are other questions suggested by the record, on which it is not deemed necessary to. express an opinion. The decree of the city court must he reversed and the cause remanded for further proceedings in conformity to this opinion.
Reversed and remanded.