Cornelius v. Bishop

• Decision Date: 14 April 1921
• Docket Number: 8 Div. 257,257A
• Parties: CORNELIUS et al. v. BISHOP et al.
• Court: Alabama Supreme Court

88 So. 592

205 Ala. 503

CORNELIUS et al. v. BISHOP et al.

8 Div. 257, 257A

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, Marshall County; W.W. Harralson, Judge.

Bill to redeem from foreclosure by M.L. Cornelius (formerly Woodham) on behalf of herself and her minor children, by her husband Woodham, against Richard Bishop and others. Decree for respondents, and complainants appeal. Reversed and remanded.

John A Lusk & Son, of Guntersville, for appellants.

Street & Bradford, of Guntersville, for appellees.

MILLER J.

On the 13th day of September, 1905, G.W. Woodham and his wife executed a mortgage to Mary P. Harwell on 85 acres of land to secure debt of $600, evidenced by three promissory notes for $200 each. This mortgage contained a power of sale, but did not authorize the mortgagee, her transferee or assignee, to purchase the property at the sale. The mortgage was duly recorded in the probate office of Marshall county, the county in which the land was located, on the 14th day of September, 1905.

On November 17, 1908, the mortgagee transferred the debt and mortgage to L.V. Buckalew; and on the 30th day of October, 1909, under the power of sale in the mortgage, L.V. Buckalew, the transferee, sold the land, and she was the purchaser at the sale, and deed was made conveying the land to her by her agent and attorney on October 30, 1909. It was bid in by her for $441, "the amount due on said mortgage indebtedness, including the cost of foreclosure."

On October 20, 1907, before the mortgage was foreclosed, G.W. Woodham, the mortgagor, died. He left a widow and six minor children. The widow married again--a Mr. Cornelius.

There has been no administration on G.W. Woodham's estate. After the mortgage foreclosure sale, L.V. Buckalew, the purchaser, and her husband, sold and conveyed the land--part of it, 42 acres, to Richard Bishop, and the balance, about 42 acres, to S.J. Stone.

The widow, Mrs. M.L. Cornelius, and these six children of G.W. Woodham, the mortgagor, file this bill, allege the foregoing facts, and elect to declare null and void the purchase of L.V. Buckalew, the transferee of the mortgage, at the foreclosure sale, because it gave her no right to become the purchaser, and that they be allowed to redeem the lands from the mortgage by paying all amounts justly due thereunder, and those in possession be required to account for all rents and profits received from the land. The bill was filed March 23, 1917. The bill makes parties defendant the following named persons: Mary P. Plemons, who was Mary P. Harwell, the original mortgagee; Mrs. L.V. Buckalew, who was the transferee of the mortgage; Richard Bishop and Virgil Moon, those now in possession of certain parts of the land; and Richard Bishop is in possession of 42 acres under purchase from L.V. Buckalew. There were decrees pro confesso against Mary P. Plemons and Mary P. Harwell.

Richard Bishop and Virgil Moon file demurrers and answers to the bill. Defendants in their answer aver:

"That at the death of G.W. Woodham he owned two farms, one being the land involved in this suit, and another farm lying near by this farm; that the farm in controversy was incumbered by the mortgage mentioned in the bill, and the other farm was free from incumbrance, and that at that time the said G.W. Woodham was indebted to various persons to the amount of several hundred dollars in addition to the indebtedness covered by said mortgage; that in the early fall of 1909 complainant M.L. Cornelius (then Woodham), the said L.V. Buckalew, W.L. Buckalew, who is a brother of the said M.L. Cornelius, one Mrs. S.J. Stone, and the defendant R.E. Bishop entered into an agreement in substance that the land involved in this suit should be sold under the power contained in the mortgage in order to clear up the land title, and that the said L.V. Buckalew should purchase the land, and that she should then convey to the said S.J. Stone the land described in paragraph 6 of the answer in consideration of $600 to be paid by Mrs. Stone, and that she, the said L.V. Buckalew, should then convey to the defendant Bishop the land described in paragraph 5 of the bill in consideration of $400 to be paid by said Bishop.

"It was further agreed that out of the $1,000 to be paid by the said Stone and Bishop the balance due on the mortgage should be paid, and the remainder to be paid to the creditors of the said G.W. Woodham so as to relieve the other farm from liability for debts of said Woodham, on which complainants were residing at the time of making said agreement. Respondent avers that after advertisement in strict conformity to the power of sale in said mortgage and in all other respects in conformity thereto, the said L.V. Buckalew, as the assignee of said mortgage, did on the 30th day of October, 1909, sell said land under said power at public outcry at the courthouse door of Marshall county, and at such sale said L.V. Buckalew did bid in the same at $441, and her attorney did execute to her the paper, a copy of which is attached to the bill."

R.E. Bishop on the 1st day of November, 1909, purchased a part of the land--42 acres, accurately describing it--from L.V. Buckalew, and paid her $400 therefor. A proper deed was made conveying said land to him. He bought it in good faith, with no knowledge or notice of any defects in the title of L.V. Buckalew. He went into possession, has been in possession ever since, and has made large improvements on the land at great expense, to wit, $1,000.

The respondent Virgil Moon makes same averments as above set out by Bishop in regard to the balance of said land, 42 acres, except he avers that S.J. Stone purchased it from L.V. Buckalew and paid her $600 for it, and proper deed was made to him. After the purchase of the land S.J. Stone went into possession and continued in possession until the 8th of November, 1910, when he (Stone) conveyed and sold this land to James Chapell for $600. The answer avers that neither Stone nor Chapell knew of or had any notice of defects in title of L.V. Buckalew. These two defendants also aver in their answer that complainants during these years resided near said lands, and knew that respondents or those through whom they hold were claiming openly and adversely the lands as their own, in hostility to all other persons, and putting valuable improvements thereon; and they further aver that "the money received by said L.V. Buckalew for sale of the said lands to said R.E. Bishop and the said S.J. Stone, as above set forth," amount in all to the sum of $1,000; that, after paying said mortgage debt, the balance of the money was paid out by L.V. Buckalew in pursuance to said agreement as follows:

"On the debts of said G.W. Woodham in a large amount, to wit, $300, and did out of said remaining funds realized from the sale of said lands expend a large amount, to wit, $300, in erecting a dwelling house on said other farm which complainants still own and occupy and enjoy as a home or a dwelling place, thereby both improving said other farm and relieving it from liability for the debts of G.W. Woodham."

This mortgage did not authorize the mortgagee to bid and purchase the land at the sale. The transferee of the mortgage would not have that right. When a mortgagee or his transferee purchases real estate at his own sale under the mortgage without authority therein, the mortgagor has the right to affirm or disaffirm the sale, and, if he disaffirms, to redeem. This must be done within a reasonable time after the sale, and "in ordinary cases" that is 2 years. If the mortgagor is dead when it is foreclosed, then his widow or heirs 21 years old or over at the time of sale have "in ordinary cases" 2 years to affirm or disaffirm the sale. If the heirs of the mortgagor or any of them are minors at the time of sale, then they "in ordinary cases" have 2 years after attaining full age to affirm or disaffirm the sale, provided the period is not extended more than 20 years from the day of sale. Lovelace v. Hutchinson, 106 Ala. 418, 17 So. 623; Alexander v. Hill, 88 Ala. 487, 7 So. 238, 16 Am.St.Rep. 55; Garland v. Watson, 74 Ala. 323; Sharp v. Blanton, 194 Ala. 460, 69 So. 889.

The mortgagor died before the mortgage was foreclosed. He left a widow and six minor children. Five of the children are still minors and sue by next friend, and one was between 21 and 23 years of age when the bill was filed. The widow, formerly M.L. Woodham, now M.L. Cornelius, was 21 years old at the time of foreclosure sale. The bill was filed more than 2 years--nearly 7 years--thereafter. She has no right now to affirm or disaffirm the sale. The six children have the right to disaffirm and redeem. Alexander v. Hill, 88 Ala. 487, 7 So. 238, 16 Am.St.Rep. 55. Still she (widow) is a proper party under the allegations of the answer of the respondents and the proof in the cause. They aver she conveyed her interest in these 85 acres of land to Richard Bishop, defendant, and said S.J. Stone after the mortgage was foreclosed.

The evidence shows that she, the widow, after the mortgage was foreclosed, joined in two deeds with said L.V. Buckalew and said W.L. Buckalew. One deed sold and conveyed 42 acres of the land to Richard Bishop, and the other deed sold and conveyed the other 42 acres of land to S.J. Stone. These respondents claim the widow's interest in the 85 acres and her interest in the rents under the deed. Richard Bishop and S.J. Stone were each strangers to this land--no interest in any of it until the execution of the deed.

The answers of the defendants aver and the proof shows that this 85 acres of land was used and occupied by the mortgagor, G.W Woodham, and his family as a homestead at the time of his death. He was a citizen of Alabama. There was no...