Aiken v. Bridgeford

• Decision Date: 22 May 1888
• Citation: 84 Ala. 295,4 So. 266
• Parties: AIKEN ET AL. v. BRIDGEFORD ET AL.
• Court: Alabama Supreme Court

4 So. 266

84 Ala. 295

AIKEN ET AL. v. BRIDGEFORD ET AL.

Supreme Court of Alabama

May 22, 1888

Appeal from chancery court, Etowah county; S. K. MCSPADDEN, Judge.

This was a bill filed by Bridgeford & Co., the appellees in this court, against James Aiken as trustee and others, for the purpose of redeeming certain lands described in the bill. The facts, as shown by the bill, are as follows: One Douthit owned the lands in controversy, and, for the purpose of securing an indebtedness due to one Mary E. Moody, executed in December, 1882, a deed of trust, containing the lands in controversy, to James Aiken as trustee, with a power of sale. In June, 1884, the said Douthit executed a mortgage to the complainants upon the said lands. In February, 1885, the said Aiken, as trustee, sold, under the power contained in the deed of trust, the lands in controversy, and the said Mary E Moody became the purchaser. Bridgeford & Co. now file this their bill, and seek to redeem the said lands as junior mortgagees. The bill was filed more than two years after the sale under the deed of trust. The defendants interposed demurrers to the bill on the ground that the complainant was not entitled to redeem; the bill not making out a case for equitable relief. The question, as raised by the demurrers was, "Has the junior mortgagee the right to bring his action for redemption within five years after a sale under a power in a senior mortgage?" The chancellor overruled the demurrers, and the defendants (appellants here) now assign this ruling of the chancellor as error.

Aiken, Dorctch & Martin, for appellants.

W. H. Denson, for appellees.

SOMERVILLE J.

In the case of Powers v. Andrews, ante, 263, (decided at the present term,) we held that, under out statute regulating the redemption of real estate sold under execution, decree, mortgage, or deed of trust, (Code 1886, §§ 1879, 1891,) an assignee, or junior mortgagee, of the equity of redemption of a prior mortgagor, was not entitled to exercise the statutory right of redemption after a regular foreclosure of the mortgage under a power of sale contained in the instrument had taken place; nor after foreclosure by a court of chancery, except where such mortgagee had not been made a party to the proceeding, in which case he might redeem at any time within five years. Code 1886, § 2616. The principle there settled requires the reversal of the chancellor's decree in this case.

But independent of that view of the case, there is another which leads to the same result. The present bill was filed by the appellee more than two years after the foreclosure of the deed of trust by Aiken...