American Freehold Land Mortg. Co. v. Pollard

• Decision Date: 27 June 1900
• Citation: 29 So. 598,127 Ala. 227
• Parties: AMERICAN FREEHOLD LAND MORTG. CO. v. POLLARD ET AL.
• Court: Alabama Supreme Court

29 So. 598

127 Ala. 227

AMERICAN FREEHOLD LAND MORTG. CO. v. POLLARD ET AL.

Supreme Court of Alabama

June 27, 1900

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Bill by the American Freehold Land Mortgage Company against Rebecca M. Pollard and another. From a decree in favor of defendants plaintiff appeals. Affirmed.

The bill in this case was filed by the American Freehold Land Mortgage Company against Charles T. Pollard and Rebecca M Pollard, his wife. The purpose of the bill and the facts of the case are sufficiently stated in the opinion. The present appeal is prosecuted from a decree rendered on the final submission granting the relief prayed for by Mrs. Rebecca M Pollard in her cross bill.

Knox &amp Bowie and Watts, Troy & Caffey, for appellant.

John G. Winter and Geo. F. Moore, for appellees.

McCLELLAN C.J.

Adopting in the main the statement of the cause embraced in the opinion of the chancellor, the case, for the purposes of this appeal, may be summarized as follows: The mortgage company, after default, purchased the mortgaged premises at its own foreclosure, without authority to that end in the mortgage; and subsequently within a few months, in March, 1889, filed this bill against Mrs. Pollard, the mortgagor, and others, for the purpose, among others, of compelling her to elect to affirm or disaffirm the purchase. The mortgage, exhibited to and made a part of the bill, contained this provision: "If it shall become necessary to employ an attorney to foreclose this mortgage, they [meaning the mortgagors] will pay such reasonable attorney's fees and all other lawful and proper costs and expenses that may be incurred by the mortgagee in that behalf, and this mortgage shall stand security for the same." The bill, in its original form, alleged that "orator employed certain attorneys for the purpose of making said sale and foreclosing said mortgage, and to obtain their legal advice and counsel with reference thereto, and thereby became liable to pay its said counsel twenty-three hundred dollars as counsel fees." The prayer of the bill was that respondents be required to elect whether they would disaffirm and avoid the purchase by complainant, and offered, in the event of disaffirmance, to do equity generally, and in particular to account for rents. The further prayer was, still in event of disaffirmance, for foreclosure for the amount of the debt secured by the mortgage and necessary expenses, "including your orator's said attorney's fee for foreclosing this mortgage, as well as for filing this bill." There was a prayer for general relief, but no specific relief was prayed in the event of an election by respondents to confirm the purchase; nor was there any offer, general or special, to do equity in the event of an election by respondents to confirm. On August 12, 1889, the respondent Mrs. Pollard answered the bill, and in that answer definitely elected to ratify and confirm complainant's purchase. The cause, then involving other issues, was prosecuted to a final decree, from which an appeal was taken to the supreme court, where it was decided that complainant was not entitled to attorney's fees for filing the bill and prosecuting the suit. The complainant then amended its bill by striking out its claim for attorney's fees for filing this bill, and the cause again progressed to a final decree. Another appeal was taken to the supreme court, and it was then decided that complainant was entitled under the mortgage to attorney's fees for filing this bill and prosecuting this suit, but that no decree to that effect could be rendered, because there was no prayer in the bill for such relief in the event of an affirmance of the sale by the respondents. And then complainant again amended its bill by striking out these words: "And orator further prays that in case the said defendants, or either of them having a right to disaffirm said sale, should elect to do so, an account may be taken before the register of this court for ascertaining the amount of principal and interest due upon the said note and interest coupons secured by the mortgage so given to orator as aforesaid, including the necessary expenses incident to advertising and making said sale of said mortgaged premises, and including your orator's said attorney's fees for foreclosing said mortgage under the power of sale contained therein, as well as for filing this bill," and inserting in lieu thereof the following words: "Orator further prays that the account may be taken before the register of this court for ascertaining the amount of interest and principal due upon said note and interest coupons secured by the mortgage so given to your orator as aforesaid, including the necessary expenses incident to advertising and making said sale of said mortgaged premises, and including your orator's attorney's fee for foreclosing said mortgage under the power of sale contained therein, as well as for filing this bill and prosecuting this suit." The prayer of the bill, in so far as it calls upon respondents to elect, has never been changed in any respect. Subsequently, on March 18, 1899, Mrs. Pollard filed her answer to the bill as last amended, which answer she makes a cross bill, and therein she incorporates these words: "And this defendant, having never fully answered said original bill and all amendments thereto in accordance with the several prayers therein, hereby strikes out all matters stated, alleged, or averred in any of her answers or other pleadings heretofore filed by her which are inconsistent with or repugnant to this answer." And she then in said answer and cross bill again elected between affirmance and disaffirmance of said sale under the power and purchase by complainant, in these words: "This defendant now, in consequence of and answering the said bill as last amended, now exercises her right to elect to disaffirm or to affirm said sale; elects to disaffirm, and does hereby disaffirm, the said sale so made by complainant under the power contained in said mortgage." This cross bill avers that Mrs. Pollard is the owner of the premises involved, and the complainant is in possession under said voidable sale, and receiving the rents and profits, as, indeed, is shown by the original bill; that, electing to disaffirm said sale, she is entitled to redeem from the mortgagee, etc. And the prayer is that she be let in to redeem; that an account be taken of the mortgage debt, and of the rents received by the mortgagee; that said rents be applied to said debt. And she offers to pay any balance found due thereon, etc. The respondent in the cross bill, the mortgage company, complainant in the original bill, demurred to the cross bill, and also moved to dismiss for want of equity, on the grounds, in substance: First, that the election to affirm the sale first made by Mrs. Pollard was conclusive upon her and irrevocable, especially as decrees final in their terms had been entered in the cause, ascertaining and declaring such election by her; and, second, that she had lost her right to disaffirm the sale and purchase by the mortgagee through laches in delaying for more than two years after the sale to assert it. There was also a plea by respondent in the cross bill setting up a sale of the premises by the complainant after Mrs. Pollard's original election to affirm the sale, and another such election by her after the sale, with knowledge of it on her part, improvements, etc., by the purchaser at that sale, etc. This plea was held insufficient, and the motion to dismiss for want of equity and the demurrer were overruled, and on final submission there was a decree granting the relief prayed in Mrs. Pollard's cross bill.

The two former decrees rendered by the city court in this cause are to be left entirely out of view on this appeal. They were each reversed and annulled on appeal to this court (103 Ala 289, 16 So. 801, and 120 Ala. 1, 24 So. 736), and thereby were utterly destroyed for all purposes; the judgments here leaving the case to stand as if they had not been rendered. It was even said on the last appeal, though...