Tipton v. Wortham

93 Ala. 321 | Ala. | 1890

COLEMAN, J.

— Complainant se,eks the cancellation of a mortgage, and to redeem certain lands, which were mortgaged to secure an indebtedness due from him to the guardian of the defendant, and which mortgage became the property of his ward, now defendant, upon attaining his majority. The bill does not seek relief under the statutory right of redemption, but proceeds entirely upon the theory, that there has been no legal and valid foreclosure of the mortgage. The bill avers that the mortgage debt was fully paid and discharged before the sale, and asks that an account be stated, and in the event the court ascertains that there is a balance unpaid, the complainant offers to do equity, by paying whatever may be found to be due.

There are recitals in the bill, which seem to have beemmade upon the theory, that although there may have been a foreclosure of the mortgage under the power contained in it, and one Duskin may have bid off the land; yet, as there was no memorandum of the sale, or conveyance by the assignee and the o.wner of the mortgage to the purchaser, the sale was a nullity, and the title and right of possession to the property remained the same as if there had been no sale. This was the law as declared by this court under • the earlier decisions. Jackson v. Scott, 67 Ala. 100. There are later decisions which hold to the contrary. — Cooper v. Hornsby, 71 Ala. 64; Durden v. Whetstone, 92 Ala. 480; Mewburne v. Bass, 82 Ala. 622.

, If the proof should establish that the mortgage debt was paid before the attempted foreclosure, the plaintiff would be entitled to relief; or, if the proof should show there was a foreclosure and a balance due on the mortgage at the time of the sale, and that Wortham was the real purchaser, although the land may have been bid off by Duskin, by proper averments- seasonably made the plaintiff would be entitled to dis-affirm the sale, and thereby to become re-invested with the equity of redemption ; and he would be entitled to redeem the land from under the mortgage. A bill is not objectionable for multifariousness which elects to disaffirm a sale, on the ground that the mortgagee became the'purchaser at his own sale, and at the same time asks that an account be stated, and if it appears that the mortgage debt has been paid, prays that the mortgage be cancelled; or if a balance be found due, prays that tjre complainant be allowed to redeem the property from under the mortgage. — Askew v. Sanders, 84 Ala. 356; New Eng. Mort. Sec. Co. v. Sewell, 92 Ala. 163.

If the proof should show that the mortgage debt, or any part, was due and owing at the time of the sale, and that Duskin was a Iona fide purchaser in his own right, and the mortgagee and purchaser have recognized the sale as valid, complainant could get no relief under the present bill,. It is wholly insufficient as a bill to redeem under the statutory right of redemption. — .Code, 1886, § 1881; Stocks v. Young, 67 Ala. 343. The demurrer to the bill was directed against it in this aspect, and this is the view the .court seems to have taken of the pleadings. We are of opinion that the court misconstrued the allegations of _the bill and its purposes, and improperly sustained the demurrer.'

No action was had in the lower court upon the demurrer . interposed by Duskin, and the demurrer filed by him is not considered.

Reversed and remanded.