Threefoot Bros. & Co. v. Hillman, 130 Ala. 244

130 Ala. 244 | Ala. | 1900

TYSON, J.

The right of complainant, if it ever existed, to have the lands mortgaged to Maxwell, Beale & Allen, sold in the inverse order of their alienation was destroyed by the foreclosure of that mortgage and the pur chase of the lands at the sale by the respondent, Mrs. Hillman; no notice of their equity having been averred or proven.—Pitts v. American Freehold Land Mortgage Co., 123 Ala. 469. Obviously, to avoid this result, the complainants made the charge in their bill that the foreclosure sale was fraudulent, in this, that there was a conspiracy between the mortgagee, the mortgagors and the purchaser to defeat them in the collection of their debt, and that, in fact, there was nothing due to the mortgagees upon their mortgage when the sale was had. The evidence utterly fails to sustain this Charge. On the contrary, it establishes 'dearly and beyond cavil, that the amount bid at the sale by the purchaser was the balance due upon the mortgage debt and the sale was fairly, openly and publicly conducted, and not the semblance of a conspiracy shown between any persons to defraud or injure the complainants.

The bill is without equity to enforce complainants’ statutory right of redemption as against the purchaser, Mrs. Hillman, and we do not understand that they make that insistence.—’Code, § 3507; Beebe v. Buxton, 99 Ala. 117; Beatty v. Brown, 101 Ala. 695, and authorities cited therein.

The lands conveyed by the mortgage to the complainants and which they purchased at the foreclosure sale had under it, belonged to Mrs. Hillman’s husband. It is true, she joined in the mortgage as his wife, doubtless for the purpose of conveying her dower and homestead rights, as these were the only rights which she was entitled to in the lands. Having purchased these lands at the foreclosure sale of the mortgage held by Maxwell, Peale and Allen, to which the complainant’s title was subordinate, it is contended, that, because the mortgage of complainants’ contained a statutory warranty, the title she acquired enured to their benefit and passed go instanti to them. The mortgage to complainants was executed and foreclosed while the Code of 1886 was in force, and indeed, the purchase by Mrs. Hillman was while the provision of that Code governed. Under its provisions she was only sui juris as to her separate estate, with limitations imposed upon her right, not necessary here to enumerate,'to contract,'alienate and mortgage it. — § § 2341 et seq. Had the property conveyed by mortgage to the complainants, been owned by Mrs. Hillman, instead of by her husband, the debt secured by the mortgage being Ms debt and not hers, the mortgage would have been void and its recitals would not have worked an estoppel as against her.—Richardson v. Stephens, 122 Ala. 301; Price v. Cooper, 123 Ala. 392. The debt and the land conveyed, however, as we have said, were both her husband’s. The statutes relieving her from the bonds of coverture, do not go to the extent of making her huí juris as to lier dower and homestead rights in her husband’s lands. Her act of warranty, by joining in the mortgage for the purpose of releasing those rights, being purely contractual, cannot operate by estoppel to bind her, because she labored under a legal disability to make such covenant. Mrs. Hillman, not being bound by the covenants of warranty in the mortgage, is' not estopped from setting up her title subsequently acquired.-Gonzales v. Hukil, 49 Ala. 260; Chapman v. Abrahams, 61 Ala. 108. If not so estopped, the title she acquired by her purchase at the foreclosure sale, did not enure to complainants. For it is upon the principle of estoppel that the doctrine contended for by 'complainants is made to rest.—Chapman v. Abrahams, supra, and cases cited therein; Owen v. Bankhead, 76 Ala. 148; Sayre v. Sheffield Land Co., 106 Ala. 440. But independent of this, the estoppel attempted to be asserted by complainants as purchasers at their mortgage sale, if it existed, could be'invoked successfully in a court of law and cannot- alone be made the predicate for affixmiative relief in a court of equity. In other words, if Mrs. Hillman had bound herself by the covenants of warranty in the mortgage, the 'Complainants in ah action of ejectment or in an action in the nature of ejectment could have invoked the estoppel and recovered the possession of the lands from her. Such estoppel, growing out of a written contract and not resting in pais, would have the effect to pass and vest the legal title, which, of course, can always be asserted in a court- of law.—McGee v. Eastis, 5 Stew. & Port. 426; Kennedy v. McCartney, 4 Port. 141; Bean v. Welsh, 17 Ala. 770; Carter v. Chaudron, 21 Ala. 91; Sayre v. Sheffield Land Co., supra.

It is also true, that Mrs. Hillman by the purchase, acquired the ownership or title to the lands subject to the senior mortgage held by the British & American Mortgage Co., Limited. As against that Company she has only an equity of redemption — a right to pay off and discharge tlie debt to it- — an equity which also 'belongs to the complainants and which may be preserved by them in the same way. This, however, they cannot do until a maturity of that debt. Nor 'can they force that company to foreclose its mortgage.—Kelly v. Longshore, 78 Ala. 203; Wimberly v. Mayberry & Co., 94 Ala. 240; Mims v. Cobb, 110 Ala. 577. Nor have they a superior right to the lands as against Maxwell, Peale & Allen acquired under the mortgage executed to the latter by Mrs. Hillman to secure the purchase price agreed to be paid by her at the foreclosure sale.—Jones v. Davis, 121 Ala. 348; Fouche v. Swain, 80 Ala. 151; Hassell v. Hassell, 129 Ala. 326.

Affirmed.