Robinson v. Cullom & Co.

41 Ala. 693 | Ala. | 1868

BYRD, J.

The counsel for appellant, in their brief, remark, that they “are unable, after carefully examining the record, to discover upon what ground the chancellor dismissed the bill.” The cause was subinitted for hearing upon the pleadings and proof. The answers contain a demurrer to the bill, and we presume that the chancellor dismissed the bill on the pleadings and proofs, as the 66th rule of practice requires a demurrer to be disposed of at the first term after it is filed, without waiting for the cause to be ready on the proof; and the record shows that the cause was continued after the demurrer was filed, and it doesnot show that any notice was ever taken of it by the counsel or the court. We do not, therefore, see proper to take any notice of the demurrer, upon an appeal by the complainant in the bill. Although thé counsel have not discovered the ground upon which the bill was dismissed, nor the chancellor pointed out any; yet, if we can discover any upon which it ought to have been dismissed, it is just and reasonable to presume that he dismissed it upon that ground, or some other good ground which we have not detected.

1. It is apparent from the third and fifth sections of the bill, and from the whole scope of it, that the appellant denies the validity of the sale by Cullom & Co. to Hughes; and that he founds his right to the remedy he seeks, in part,'upon the averment that that sale “was pretended and-fraudulent and upon the charge, “ that said sales from said S. Cullom & Co. to said Hughes, and from said Hughes to said S. Cullom & Co., and the conveyances executed by them respectively for said land, * * * Kwere null and void.”* The evidence is not sufficient to satisfy us that the sale was fraudulent and void. The answers of the defendants are to be treated as mere pleading, as appellant waived their verification by oath. .If they had been under oath, they would have been subject to a just and severe criticism, especially when their contents are compared with the evidence. As the appellant does not make out by proof that the sale by the mortgagees was fraudulent, the chancellor properly dismissed the bill, so far as any remedy was predicated on that ground.—Pierce v. Brassfield, 9 Ala. 573; Cameron v. Abbott, 30 Ala. 416; Billingslea v. Ware, 32 Ala. 415; Walthall v. Rives, Battle & Co., 36 Ala. 91; 38 Ala. 329; Swift v. Swift, 36 Ala. 147.

2. In the case of Charles v. DuBose, (29 Ala. 367,) this court notices, without deciding, the sufficiency of the allegation, in a bill seeking to set aside a sale, that “ the defendant pretended there had been a sale.” We do not intend now to intimate any opinion whether the frequent use of the word pretended in this bill meets the requirements of the rules governing pleadings in equity; but, as its use is of frequent occurrence in bills of late years, we merely -refer to the following authorities on the subject: 1 Dan. Ch. Pr. 411-12, and notes; Bliss v. Anderson, 31 Ala. 612; Story’s Eq. Pl. §§ 32, 241; Spence v. Duren, 3 Ala. 251; Holman v. Bank of Norfolk, 12 Ala. 369.

3. A trustee in a deed of trust, or a mortgagee, with a power of sale, may purchase at his own sale under the conveyance, and the sale is not void, but voidable at the instance of the beneficiary, if in any reasonable time he chooses to avoid it.—Charles v. DuBose, 29 Ala. 367; Eastern Bank v. Taylor, at June term, 1867. Conceding that the mortgagees were purchasers at their own sale, and that the bill seeks to set aside the sale on that ground; yet, under the authorities cited, and all the facts of this case, we are satisfied that the appellant did not apply within a reasonable time to haye the sale set aside.—See, also, Gentry v. Rogers, 40 Ala.

The chancellor therefore committed no error in the decree rendered, and his decree is affirmed.