Burns v. Mortgage Bond Co. of New York

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 361
• Citation: 199 Ala. 77,73 So. 987
• Parties: BURNS v. MORTGAGE BOND CO. OF NEW YORK et al.
• Court: Alabama Supreme Court

73 So. 987

199 Ala. 77

BURNS v. MORTGAGE BOND CO. OF NEW YORK et al.

6 Div. 361

Supreme Court of Alabama

June 30, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Circuit Court, Jefferson County; A.B. Foster, Judge.

Action by E.J. Burns against the Mortgage Bond Company of New York and others. From a judgment dismissing both the original bill and a cross-bill filed by one defendant, plaintiff appeals. Affirmed.

Graham Perdue, of Birmingham, for appellant.

Allen Bell & Sadler, for Birmingham, for appellees.

MAYFIELD J.

This is a bill filed by appellant, a mortgagor, to exercise his equity of redemption. The bill is somewhat peculiar, in that it alleges that the original mortgagee had theretofore transferred and assigned his interest in the mortgage debt and the lands conveyed by the mortgage, thus showing that the original mortgagee has no interest in the matter. It is alleged, however, that the assignee, consignee, or grantee of the mortgage debt and premises was unknown to complainant, and could not be ascertained, and complainant therefore asks the court to aid him in ascertaining such party, and, when so ascertained, to make such grantee a party defendant. The assignee was ascertained and made a party, but was not made a party until there was a foreclosure, under the powers of the mortgage and then both he and the purchaser at the sale were made parties.

The assignee, Hamill, answered, and the purchaser at the foreclosure sale answered and filed a cross-bill, making complainant and other parties respondents thereto. The merits of the cross-bill are not here important. The hearing proceeded to final decree on all the pleadings and proof, and the chancellor, or judge with chancery jurisdiction dismissed both the original bill and the cross-bill, and denied all relief. From the decree the original complainant only appeals.

It appears that the assignee was known to the complainant or his attorney, or could and should have been known or ascertained by both within ample time to be made a party before the foreclosure; but that for some reason the assignee was not made a party until the foreclosure was had, which of course cut off the equity of redemption as completely as if it had never existed, conceding that the foreclosure was both regular and valid (and no sufficient reason is shown for finding the contrary).

It is of course denied by complainant and his counsel that they had notice or knowledge of the identity of the assignee in time to make him a party; and it is contended that if they did have such notice or knowledge in time, it was not their fault that he was not made a party before the foreclosure. Evidence was taken on this phase of the case, and the chancellor found against the contention of complainant--that is, that it was complainant's fault that the assignee was not made a party before the foreclosure, and that on account of this fault the equity of redemption was cut off.

It has been held by this court--and the doctrine was expressly recognized by the trial court--that the filing of a bill to redeem property and...