Stewart v. Wilson

| Ala. | Nov 15, 1904

SHARPE, J.

-By the proceedings had in foreclosing the mortgage of Dugger to Hughes the right of the parties to the mortgage, including the transferee Simpson Grocery Company, became fixed and the mortgage itself was extinguished.- — Stephenson v. Harris, 131 Ala. 470" court="Ala." date_filed="1901-11-15" href="https://app.midpage.ai/document/stephenson-v-harris-6519253?utm_source=webapp" opinion_id="6519253">131 Ala. 470; Duval’s Heirs v. McLoskey, 1 Ala. 728; Waldron v. Letson, 15 N. J. Eq. 126. The mortgage having so become extinct, the fact that property was omitted therefrom by mistake in the execution of the instrument furnished no ground for reformation in equity of either the mortgage or the decree of foreclosure. See Schwickerath v. Cooksey, 53 Mo. 75" court="Mo." date_filed="1873-07-15" href="https://app.midpage.ai/document/schwickerath-v-cooksey-8004070?utm_source=webapp" opinion_id="8004070">53 Mo. 75; Miller v. Kolb, 47 Ind. 220" court="Ind." date_filed="1874-05-15" href="https://app.midpage.ai/document/miller-v-kolb-7040190?utm_source=webapp" opinion_id="7040190">47 Ind. 220; Waldron v. Letson, and Stephenson v. Harris, supra. The decision in the last cited case is.authority conclusively opposed to the maintenance of this bill. From its influence the case is not removed by the mere fact that the register included in his sale the laud in controversy. The register’s power to sell was bounded by the decree he was executing and his acts in respect to that power were nugatory as.against all persons not consenting thereto. In the hill there are no averments of facts which as against the defendant heirs of Dugger, can operate as an estop-pel or imply an agreement to or ratification of the register’s sale of land not decreed to be sold, and, hence considerations such as seem to have induced injunctive relief in Waldrony. Letson, supra, are lacking here.

Decree affirmed.