139 So. 92 | Ala. | 1931
Our case of Ray's Adm'rs v. Womble,
Though no definite limitation is fixed in which a court of equity must be called upon to vacate a sale for such cause, the rule, on motion at law to that end, and in equity, is the same, and it is that complainant must act promptly, dependent upon equitable principles and governed by the facts of each case. Cowan v. Sapp, supra; Ponder v. Cheeves,
But the rule of laches or limitations is also said to be analogous to the known rules of a court of equity in granting relief to a mortgagor seeking to avoid a purchase by a mortgagee at his own sale without authority in the power. Ponder v. Cheeves, supra. Without sufficient excuse, such time is fixed at two years. Ezzell v. Watson,
The sale under execution sought to be set aside for inadequacy of consideration occurred in October, 1901. The father of complainant is alleged to have died in 1886, leaving a will by which an undivided one-half interest was devised to complainant in remainder after the death of the widow, to whom one-half and the life estate in the other one-half was devised. She died February 9, 1927, and this bill was filed April 17, 1929. The sheriff's deed was recorded in 1902. Complainant served one year in the penitentiary, and upon his return, resided in another county, and had no actual knowledge of the sale until after the death of the life tenant when the purchaser at such sale took possession.
Do the circumstances so alleged show laches, and make the bill subject to demurrer on that ground? It has been held that actual ignorance of the fraud, the basis of complainant's claim, does not excuse the apparent laches when he is charged by law with constructive notice of the facts on which it is based, as by the record of the conveyance. Peters Mineral Land Co. v. Hooper,
It is not alleged in the bill that there was any concealment, or that complainant's actual ignorance was superinduced by fraud, or conduct calculated to mislead, or prevent inquiry. Peters Mineral Land Co. v. Hooper, supra; Smith v. Dallas Compress Co.,
With respect to the right of a remainderman to enforce an equitable remedy to vacate a deed, which passes the legal interest of such remainderman, by a suit to be prosecuted and maintained during the life of the life tenant, and before complainant acquired the right to present enjoyment, this court used the following language in Robinson v. Pierce,
In that case it was pointed out that there had been criticism of the application of that principle to the facts in the cases of Woodstock, etc., Co. v. Fullenwider,
In this case the sheriff's deed conveys the remainder owned by complainant in the land. It is not like a conveyance by the life tenant which only purports thus to convey it, but in fact does not. The sheriff's deed left in complainant, besides the statutory right to redeem, nothing but an equitable remedy (though it could have been asserted also by motion in the same court) to set aside the sale and vacate the deed. This right came into existence immediately after the sale. This court has held that ordinarily two years is the period of time in which this should be done. If the circumstances show that the two-year rule is inequitable, then the ordinary rules of laches and staleness apply. Some twenty-seven to twenty-eight years expired during all of which time the right existed, before as well as after the death of the life tenant. Notice of the right is imputed and ignorance of the law is no excuse. Such long delay is without legal justification and the remedy is lost by laches. Huey v. Brock,
No other question is presented which affects the decree from which the appeal is taken.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN. JJ., concur.
