Vaughan v. Marable
64 Ala. 60
Ala.
1879
Check Treatment
BBJCKELL, C. J.

Courts of equity will interfere by injunction to restrain the execution of a power of sale in a mortgage or deed of trust. The jurisdiction is, however, exercised with great care and caution, and only when by clear, precise allegations of distinct facts, it is made to appear that, by reasоn of fraud, or want or illegality of consideration, the collection of the debt is against good conscience, and the sale would work irreparable injury. — 2 Jones Mort. §§ 1804-07; High on Inj. §§ 309-12.

The mortgage, in the present case, is framed and intended to secure a pre-existing debt, due by promissory note made by the mortgagor, and the performance of a contemporaneous agreement by which the mortgagor assumed to defend a suit commenced by one Thomas against the mortgagee, and to pay and satisfy any judgment which might be rendered therein against the mortgagee. The validity of the рromissory note is assailed, because of duress and fraud in obtaining it, and for want of consideration. The consideration was the purchase-monеy of lands, which the payee had bargained and sold, and by quit-claim conveyed to the mortgagor. The facts are, in substance, that the lands were thе statutory separate estate of a married woman, Mrs. Smith, from whom and her husband one Mitchell had purchased, or asserted he bad purchased, an undivided half interest therein. Under such claim, he was in possession; and an execution, issuing on a judgment against him, was levied on the lands, and a sale made by the sheriff, at which the mortgagor became the purchaser, entering into possession. There is some doubt- whether the conveyance to Mitсhell was executed by the wife, or by her authority. It is produced; purports to bear her signature; is attested by but one witness, and not acknowledged befоre any officer having authority to take and certify her acknowledgment. The mortgagor remained in possession for some time, claiming only an undividеd half, interest, when possession was taken peaceably, not violently (as is alleged in the bill), by a son of Mrs. Smith. The mortgagor then commenced negоtiations for a purchase of the *66lands from Mrs. Smith, who had become discovert. These negotiations were unsuccessful, and Mrs. Smith made a sale and сonveyance of the lands to the appellant ‍​​‌​​​‌‌‌​​‌‌‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​​​‌​‌‌​​​‌‌​​‌‍and one Phillips, who subsequently sold and conveyed to the appellee, taking the prоmissory note secured by the mortgage for the purchase-money.

2-3. If it couid be admitted that the conveyance to Mitchell was signed by Mrs. Smith, it is appаrent that it is invalid and inoperative, not passing her estate. The statutory separate estate of a married woman, in lands, can not be conveyed by deed, or other instrument, unless it is attested by two witnesses, or acknowledged and certified by some one of the officers having authority to takе and certify her acknowledgment. If, under a conveyance not attested or acknowledged, possession of the lands is taken, the possession is wrongful. Mitchell had no interest or estate in the lands, which was the subject of levy and sale under execution; and none was acquired by the apрellee, by his purchase at the sale by the sheriff. Without any right the appellee having entered into possession, it was the right of Mrs. Smith to enter, by herself or her agents, whenever she could, peaceably, without force or violence. Having entered, the sale and conveyance to thе appellant was rightful, furnishing to the appellee no just cause of complaint. With full knowledge of all the facts, without duress or fraud, the appеllee purchased from the appellant and Phillips, entered into and has remained in undisturbed possession, accepting from them a quit-claim conveyance. There can be no doubt of the adequacy of the consideration of the note. Nor is there any room for the pretense that he was in fact purchasing his own property. As we have seen, he had no estate 'in the lands— acquired none by the purchase at sheriff’s sale, and was in effect, while in possession, a trespasser.

4. Contracts for the maintenance of suits, or for champerty, are void. A mortgage, given as a security for the performance of such a contract, being founded on an illegal consideration, and contravening public policy, a court of equity will interfere and restrain the mortgagee from executing a power of sale it may contain.— Gilbert v. H lmes, 64 Ill. 548. Maintenance is defined by Blackstone, as “ an officious inter-meddling in a suit that no way belongs ‍​​‌​​​‌‌‌​​‌‌‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​​​‌​‌‌​​​‌‌​​‌‍to one, by maintaining or assisting either party, with money or otherwise, to prosecute оr defend it.” — 4 Black. 134. In Finden v. Parker, 11 Mees. & Wels. 682, Lurd Abingjsr said: “ The law of maintenance, as I understand it, upon the modern constructions, is confined to cases where a man improperly, аnd for the purpose of stirring up litigation and strife, encourages *67others to bring actions, or to make defenses, which they have no right to make.” And in Thompson v. Marshall, 36 Ala. 512, it is said: “ The gist of the offense ‍​​‌​​​‌‌‌​​‌‌‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​​​‌​‌‌​​​‌‌​​‌‍is, that the intermeddling is unlawful; that it is offi-oious, and in a suit which no way belongs to the in ter meddler.” The offense rests in intention, and no intermeddling in suits is regarded as officious, and falling within it, if a party, under an honest, though mistaken belief, that he has an interest, interferes for its protection, and not for the purpose of fomenting litigation. — McCall v. Capehart, 20 Ala. 526; 1 Story on Con. § 579. The essential element of the offense — the intent to stir up strife, the officious intermeddling in a suit in which there was not an honest belief of an interest — is absent frоm this transaction. However mistaken he may have been, it is certain the appellee was under the honest belief that he, by his purchase at sheriff’s sale, had acquired an undivided half interest in the lands, and that, of consequence, to that extent there was a want of consideration for the nоte on which the appellee ‍​​‌​​​‌‌‌​​‌‌‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​​​‌​‌‌​​​‌‌​​‌‍was sued by Thomas. If, on that ground, successful defense was made to that suit, it would relieve him from liability on the note given tо the appellee and Phillips. It is the good faith of the parties, not the correctness of their opinions, which must be considered in determining whether their contracts are to be defeated for maintenance. , They are not to be defeated, when m-ide between persons who have an interest absolute, certain, or contingent, or who honestly believe that they have such interest. It is not offcious, or unlaioful, for them to assist in the prosecution or defense of suits involving such interest. — 2 Story’s Eq. § 1048. The contract by "which the appellee bound himself to indemnify the appellant against the costs and expеnses of the suit by Thomas against him, was not void for maintenance.. It results that there is not shown any cause for enjoining the appellant from executing thе power of sale in the mortgage.

5. A mortgagee, though clothed with a power of sale, may proceed in equity for a foreclosure; and there are many good reasons why he should have a foreclosure by a decree of the court, rather than by an exercise of the power. — 2 Brick. Dig. 259, § 147. The mortgage being a valid security for a just debt, and the performance of a legal contract, the cross-bill should not have beеn dismissed, but a decree of foreclosure ought to have been rendered.

The decree of the chancellor must be reversed, and a ‍​​‌​​​‌‌‌​​‌‌‌‌‌‌‌​‌​‌​‌‌​​​​​​‌‌​​​‌​‌‌​​​‌‌​​‌‍decree here rendered in conformity to this opinion.