R. T. Todd died intestate, seised in fee of a vacant lot on Turrentine avenue in the city of Gadsden, and this was all the real property he owned. His wife, appellant, owned a lot on Fourth street which had been improved by the erection thereon of three apartments. The family occupied a rented house in another part of the city. Intestate left surviving him appellant and six children, his heirs, one of them a minor. There has never been any administration of his estate, nor any assignment of homestead or dower. Shortly after his death, the widow and children, to secure a loan of money to the children, joined in the execution of a mortgage to J. B. Martin. This mortgage covered both the above-mentioned lots. The children erected two houses on the Turrentine avenue lot, and upon their completion the widow occupied, and continues to occupy, one of them as a dwelling, receiving and using the- rents from the other for the support and maintenance of herself- and family. Four or five years later the widow and her children, all now certainly of age, executed and delivered the mortgage under which appellee claims. This mortgage also covered both pieces of property. The agreement as to facts states that appellant received no part of the proceeds of the mortgage, into which she entered for the sole purpose of securing the loan to her children by pledging her Fourth street property. However, she executed the mortgage and the notes
To come within this statement of the rule of conclusiveness, the election pleaded by way of estoppel must have been of some avail to the party against whom it i.s pleaded. He must have received some benefit under his election.—Register v. Carmichael, 169 Ala. 588, 53 South. 799, 34 L. R. A. (N. S.) 309, and cases there cited. Appellant and "her co-plaintiffs in the action at law, which rested necessarily and alone upon the allegation that appellee’s bid was in excess of the amount secured by the mortgage, took nothing for the reason, we must assume upon the record, there was no such excess. Plaintiffs in that action were pursuing a will-o’-the-wisp; there was no substance to the right under which they claimed. To make a case for the application of the principle by which a party concludes himself by an election between remedies, the party must have actually at command two inconsistent remedies.—Calhoun County v. Art Metal Construction Co., 152 Ala. 607, 44 South. 876; Southern Railway Co. v. City of Attalla, 147 Ala. 653, 41 South. 664. In American Freehold Land Mortgage Co. v. Pollard, 120 Ala. 1, 24 South. 736, cited to this point by appellee, the mortgagee had bid in the property at its foreclosure sale at a price several thousand dollars in excess of the debt secured, and the ruling was that the mortgagor could not be heard to claim the excess while seeking to defeat the security. And in the same case, reported in 127 Ala. 227, 29 South. 598, where it appeared that the mortgagor, in answer to the mortgagee’s original bill, had elected to affirm under the terms then proposed, and afterwards
The decree was affected with error. To the end that appellant may have her election to disaffirm the foreclosure sale made effectual and that the mortgage may be properly foreclosed by decree under the pleadings to be recast to develop the true equities of the cause, the court making such order, if any, in respect to the sale by subdivisions of the two parcels as may seem best in the circumstances, the decree will be reversed, and the cause remanded for further proceedings.
Reversed and remanded.