Beasley v. Ross

• Decision Date: 08 April 1937
• Docket Number: 4 Div. 902
• Citation: 234 Ala. 335,174 So. 764
• Parties: BEASLEY v. ROSS.
• Court: Alabama Supreme Court

174 So. 764

234 Ala. 335

BEASLEY v. ROSS.

4 Div. 902

Supreme Court of Alabama

April 8, 1937

Rehearing Denied June 3, 1937

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Suit for accounting and redemption by M.L. Beasley against Jennie Mae Ross. From a decree allowing redemption and fixing the amount to be paid as a condition thereto, complainant appeals.

Affirmed and remanded.

Sollie & Sollie, of Ozark, for appellant.

E.W Norton, of Clayton, for appellee.

KNIGHT Justice.

Bill for redemption and accounting.

It appears from the averments of the bill that the complainant appellant here, on the 16th day of July, 1927, was indebted to respondent, appellee, in the sum of $3,500, and to secure the payment of said indebtedness, and the interest to accrue thereon, the complainant, along with his wife, executed to the respondent a mortgage on certain real estate in the city of Eufaula, Ala. The indebtedness, under the terms of the mortgage, was payable in annual installments, with interest thereon payable annually. To evidence the annual installments of principal and interest, separate principal and interest notes were executed.

It further appears that in December, 1931, after the maturity of the indebtedness, and default had been made in the payment of the same, the respondent proceeded to advertise the property for sale under the power of sale contained in the mortgage. After the respondent had advertised the property for sale, but before the day fixed for the sale, the complainant filed this bill for redemption, and accounting.

It is charged in the bill that the mortgage indebtedness included usurious interest, and also that the respondent had failed to give proper credit for certain payments made by the complainant on the principal and interest of said indebtedness.

Notwithstanding the filing of the bill and its service, the respondent proceeded, in accordance with the published notice, to sell the property in foreclosure of the mortgage. At the sale, respondent became the purchaser at and for the sum of $2,000.

The complainant prayed for an injunction, and Judge Williams made an order for its issuance, upon the execution by complainant of bond in an amount fixed by him. No bond was given, and, of course, no injunction was issued.

That there was a balance due on the mortgage when the foreclosure was had is not denied by the bill.

Upon foreclosure of the mortgage the respondent went into possession of the property, rented it to tenants, and has collected several hundred dollars in rents therefrom.

By an amendment to his bill, the complainant seeks an accounting for the rents, and application of the same to the payment of the mortgage indebtedness pro tanto.

In her answer to the amended bill the respondent denies the charge of usury, and attaches as an exhibit to her answer a statement, which purports to show all payments made to her on said notes, and the balance alleged to be due on said mortgage indebtedness, including principal and interest, on the 24th day of December, 1931, the day the mortgage was foreclosed. The answer also undertakes to give an itemized statement of rents collected, and the amounts expended in the payment of taxes and insurance on the property.

The court, on final hearing, held that the indebtedness was not infected with usury, and that the true and correct balance due respondent on said mortgage, on the day of its decree, was the sum of $3,751.90, including an attorney's fee of $300; which was allowed by the court.

In the third paragraph of its decree, the court directed: "That the foreclosure of the mortgage had and completed on the 24th day of December, 1931, at which foreclosure sale the respondent in this cause became the purchaser, is hereby set aside and held for naught, provided the complainant in this cause pays to respondent the amount hereinabove decreed to be the balance due on the debt secured by the said mortgage together with interest from the 23rd day of March, 1936, until the date of payment, same to be paid within sixty days from March 23, 1936."

This court is committed to the proposition that the foreclosure of a mortgage, after the filing of a bill by mortgagor to redeem, does not cut off the mortgagor's equitable right of redemption invoked by his bill. The equity of redemption and the right of its enforcement existed at the time of the filing of the bill, and the mortgagee could not impair or destroy this right by proceeding to foreclosure under the power contained in the mortgage. The court having assumed jurisdiction, upon timely bill filed by the mortgagor, will protect the status of the mortgagor, and, to that end, will set aside any subsequent sale made under the power, when such action is necessary to "accomplish that for which jurisdiction has been assumed." National B. & L. Ass'n v. Cheatham, 137 Ala. 395, 34 So. 383, 384; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Moore v. Berryman, 224 Ala. 555, 141 So. 192; Ezzell v. First Nat. Bank of Russellville, 218 Ala. 462, 119 So. 2; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Johnson v. Smith, 190 Ala. 521, 67 So. 401; Oden v. Valentine et al., 220 Ala. 626, 127 So. 219.

Inasmuch as the court found that there was an unpaid balance due on the mortgage, at the time of the filing of the bill, and that the same was past due, the court's decree, adjudging and ordering that the foreclosure would stand annulled and held for naught, provided ...