Alexander v. Hill

• Decision Date: 27 January 1890
• Citation: 7 So. 238,88 Ala. 487
• Parties: ALEXANDER ET AL. v. HILL ET AL.
• Court: Alabama Supreme Court

7 So. 238

88 Ala. 487

ALEXANDER ET AL. v. HILL ET AL.

Supreme Court of Alabama

January 27, 1890

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill to vacate mortgage and be let in to redeem, filed by George A Alexander and others, as minor heirs of Zeno Alexander, the mortgagor, against Fannie M. Hill. the mortgagee, and those claiming under her. The mortgage was made May 10, 1875, to secure the payment of notes, and authorized the mortgagee, on default in the payment of the notes, as they respectively fell due, to sell the land. The mortgagor died July 18, 1876. Under the power contained, in the mortgage, the mortgagee, on February 20, 1876, sold one of the tracts conveyed by it, and on February 8, 1877, she sold the other tract, becoming the purchaser in both instances, and afterwards obtained possession of the land; she, and those claiming under her remaining in possession, claiming under those sales. The bill was filed February 16, 1888, and defendants demurred on the ground of laches. Plaintiffs appeal from a decree sustaining the demurrers.

W D. Bulger, for appellants.

Hewitt, Walker & Porter, for appellees.

MCCLELLAN J.

The purchase by a mortgagee at his own sale, under a power which does not authorize him to become the purchaser, "arms the mortgagor with the option, if expressed in a reasonable time, of affirmlng or disaffirming the sale," and, if he elects to disaffirm, he is entitled to redeem the land so sold from the mortgagee. Garland v. Watson, 74 Ala 324; Harris v. Miller, 71 Ala. 26; Ezzell v. Watson, 83 Ala. 120, 3 South. Rep. 309; Knox v. Armistead, 87 Ala. 511, 6 South. Rep. 311. What is a reasonable time within which, to thus disaffirm such sale, must ordinarily be availed of, has, by analogy to the statute giving that period to redeem after a valid foreclosure, been held to be two years from the date of sale. Comer v. Sheehan, 74 Ala. 452; Ezzell v. Whatson, 83 Ala. 120, 3 South. Rep. 309. Whether the fact that the party upon whom the right to disaffirm has devolved is an infant should extend the time within which the sale may be avoided,-that is, would make such an extraordinary case as would not fall within the rule limiting the exercise of the option to two years,-has never been decided by this court. The second head-note in the case of Mewburn's Heirs v. Bass, 82 Ala. 622, stating that the exception in favor of infants, contained in the statute of limitations, did not apply to such a case, is not supported by the opinion; and, moreover, the question was not involved in that case. ^[1] Neither the statute of limitations, nor any exceptions provided for therein, have any bearing on the question. The limitation of two years, within which sales of the class under consideration must ordinarily be disaffirmed, is not a statutory, but a judicial limitation. It is not the result of legislative mandate, but of judicial opinion, that such period is usually a reasonable time for the exercise of the option of affirmance or disaffirmance, with which a purchase by the mortgagee at his own sale arms the mortgagor. The basis of the doctrine is laches, and not staleness of demand. The sale cuts off the equity of redemption as long as it is permitted to stand, but leaves in the mortgagor, and those claiming under him, the right to disaffirm it, and the consequent right to redeem upon such disaffirmance. But the law requires diligence of the mortgagor in the assertion of this right, and, in the absence of special circumstances, hold him to have waived the right, and to have affirmed the sale, unless he elects to the contrary within two years. The whole theory of the limitation, therefore, rests on the presumption of ratification after the lapse of two years, "in ordinary cases." In extraordinary cases,-cases involving peculiar circumstances, which rebut the presumption,-it will not be indulged. Instances may be readily imagine in which, for a want of knowledge on the part of the mortgagor that the mortgagee was the purchaser at his own sale, he could not be held to a ratification within...