125 So. 226 | Ala. | 1929
Lead Opinion
The rule as to estoppel in the assertion of a right to property to the prejudice of innocent parties is well understood and need not be repeated. Ivy v. Hood,
The preponderance of the evidence shows that appellant, or her agent acting for her in the purchase, was induced to the purchase and her prejudice by the assurance of mortgagee that the law day was or had been extended. He was bound by that assurance and estopped to declare due the debt and foreclose the mortgage to the prejudice of such recent purchaser.
The damages shown to have resulted to the premises by the mortgagee, or as purchaser at his alleged foreclosure, though done and committed by his agent or immediate tenant placed by him in possession of said property, were ascertained and allowed on accounting. "A mortgagee, entering into possession of the mortgaged premises before foreclosure, is accountable for the rents and profits he may receive, or which he could with reasonable diligence have received. The liability rests upon him, if he enters under a void or voidable sale. — Bigler v. Waller, 14 Wall. 297 [
It is true that, after the law day, default, or forfeiture, a mortgagee is entitled to receive the rent, income, and profits thereof; there being no extension or lawful estoppel that intervened. Bank of Moundville v. Walsh,
The trial court had the better opportunity to judge the evidence. However, we are of opinion that he has properly applied the evidence under the law in the accounting made between the parties as to the balance due.
The decree rendered is in consonance with the rules of law having application in a court of equity.
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, BROWN, and FOSTER, JJ., concur.
Addendum
The record discloses examination of witnesses as if before the court; yet that was not the fact as evidenced by the note of submission.
The rule of accountability for rents and profits that mortgagee actually received, or which he could, with reasonable diligence, have received, and that liability rests upon him if he enters under a void or voidable sale, Sloan v. Frothingham,
Perhaps it is unnecessary to observe that one in possession of land, as purchaser at a mortgage sale duly and legally made in compliance with the terms of the mortgage, is not chargeable with rent or waste — such purchaser as the "absolute owner" is entitled to rents and profits, and unimpeachable for waste. Cramer v. Watson,
The case should be retried under the foregoing decisions. The accounting was rested upon rents alone. A due regard should be had as to whether or not that defendant was, for a part of the time, in possession by tenants, and whether or not, in the selection of *356
tenants, he employed reasonable care and diligence in renting the mortgaged property so as to keep it in a state of good preservation and make it productive; that is to say, he is responsible for waste, gross mismanagement, and for his own tortious acts (27 Cyc. 1139) or failure to use reasonable care and diligence (31 Cyc. 674; Watson v. Steele, supra). And if mortgagee was in possession through tenants, and fails to keep the property leased, he is accountable for the loss of rents and profits, to the extent only that the "loss results from his willful default or gross negligence, which in such cases is defined as a failure to use reasonable care and diligence." American F. L. Mtg. Co. v. Pollard,
It results that the application for rehearing is granted, the judgment of affirmance set aside, and the decree of the circuit court is reversed, and the cause remanded.
SAYRE, BROWN, and FOSTER, JJ., concur.
