Canty v. Bixler

• Decision Date: 18 December 1913
• Citation: 185 Ala. 109,64 So. 583
• Parties: CANTY v. BIXLER et al.
• Court: Alabama Supreme Court

64 So. 583

185 Ala. 109

CANTY v. BIXLER et al.

Supreme Court of Alabama

December 18, 1913

Rehearing Denied Feb. 12, 1914

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by Ruth Canty against E.H. Bixler and others to redeem from mortgage foreclosure sale. Decree for respondents, and complainant appeals. Affirmed.

Columbus Canty executed a mortgage to one Barrett some years before the foreclosure sale, and Barrett transferred the mortgage to the State Land Company. Canty afterwards died, but just when does not appear. The State Land Company foreclosed the mortgage in June, 1909, having, prior to that time, bought at execution sale the interest of E.C. Canty in said land. After foreclosure sale, the State Land Company deeded the land to Bixler. It does not appear from the bill whether E.C. Canty or others ever offered or attempted any statutory redemption. The complainant, who was a granddaughter of Columbus Canty was a minor at the time of the foreclosure, but at that time either the mortgagor or his daughter Lucy, mother of complainant, was alive, and no disability was attributed to either one of them. The bill was filed November 29, 1911.

Rich &amp Hamilton, of Mobile, for appellant.

D.B. Cobbs, of Mobile, for appellees.

MAYFIELD J.

In the court below the complainant (appellant) filed her bill as an heir of the mortgagor (she being his granddaughter), to assert an equity of redemption as to certain lands sold, under foreclosure proceedings, under powers contained in the mortgage, for that the conditions of the power of sale had not been complied with; in other words, for that the mortgagee had become the purchaser at such sale without express authority so to do. Appellees were subsequent purchasers, or vendees, of the mortgagee after the foreclosure sale.

Whether the mortgagor was living at the time of the alleged voidable foreclosure--rendered voidable on account of the mortgagee's purchasing at his own sale, without authority conferred by the mortgage, or the power of sale contained in the mortgage--does not clearly appear. The bill was not filed until more than two years after the irregular foreclosure. If the foreclosure had been regular in all things it would, of course, have cut off the equitable right of redemption and left only the statutory right of two years; and, this period having expired, there was left of course no right of redemption in the mortgagor or in his heirs. But the bill alleges that the foreclosure sale was irregular, because the mortgagee purchased at his own sale, without authority, and that the equitable right was therefor not cut off, and that the mortgagor, or his heirs or assignees, may disaffirm the irregular sale, and exercise the equitable right of redemption.

Our court a long time ago adopted the rule that, if the mortgagor, or his heirs or assignees, desire to disaffirm the irregular foreclosure sale, and exercise this equitable right of redemption, it must be done within two years from the date of the irregular foreclosure sale. This rule, with the two-year period for redemption fixed, is said to have been adopted as being analogous to the statute conferring the statutory right of redemption after a valid and regular foreclosure cutting off the equity of redemption. Therefore, if this bill was filed by the mortgagor, it would affirmatively show on its face that his equitable rights in both aspects were barred, and would be subject to demurrer on that account. The bill shows, however, that the mortgagor is dead, but whether he died before or after the foreclosure does not clearly appear. It does appear, however, that this complainant had no interest in the property when the foreclosure was had. Her mother, through whom she inherits, was then living.

The question here presented is: Did the period of two years in which the irregular foreclosure could be set aside and redemption allowed continue to run, after the death of the mortgagor, against the heirs who file this bill? This is the prime, the pivotal, question involved on this appeal. The chancellor held that it did, and sustained a demurrer to the bill, which was, in effect, to deny the right to disaffirm and have set aside the foreclosure sale and redeem.

The case of Alexander v. Hill, 88 Ala. 487, 7 So. 238 16 Am.St.Rep. 55, is the leading case in this state upon the subject under discussion. The previous cases are therein reviewed, and the principles declared in them restated with clearness and certainty. A case exactly like the one at bar was not decided, but it was anticipated; and we think the correct rule to be applied when such a case did arise was announced. And we now, as did the chancellor, apply that rule. The case anticipated in that opinion is now presented. In that case, after stating the rules of law applicable thereto, the court, speaking through McClellan, J., said: "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...