Cox v. Davis-Wilson-Gaillard Commission Co.

• Decision Date: 09 June 1921
• Docket Number: 1 Div. 191
• Citation: 89 So. 437,206 Ala. 167
• Parties: COX v. DAVIS-WILSON-GAILLARD COMMISSION CO. et al.
• Court: Alabama Supreme Court

89 So. 437

206 Ala. 167

COX v. DAVIS-WILSON-GAILLARD COMMISSION CO. et al.

1 Div. 191

Supreme Court of Alabama

June 9, 1921

Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.

Bill by Agnes Cox against the Davis-Wilson-Gaillard Commission Company and another to declare a mortgage and foreclosure deed void, and in the alternative to redeem. From a decree dismissing the bill, the complainant appeals. Affirmed.

Q.W Tucker, of Grove Hill, for appellant.

T.J Bedsole, of Grove Hill, for appellees.

SAYRE J.

Complainant's (appellant's) bill was filed primarily to cancel a mortgage on her land, executed by herself and husband, and a foreclosure deed, on the ground that the debt secured by the mortgage was the debt of her husband alone and that she was a mere surety. There was no demurrer taking the point against the bill, but now defendants (appellees) insist that in no event could appellant have relief, for the reason that she is not shown to be in possession, and so has a perfect remedy against the mortgage and foreclosure by an action at law. The wife may not, directly or indirectly, become surety for the husband (Code, § 4497), and, if the bill sought only to avoid the legal operation of the instruments averred, complainant would have an adequate and complete remedy at law. But the bill contains an independent equity, has an alternative aspect, viz.: It avers that the foreclosure sale was a nullity, for that it was not advertised as stipulated in the instrument of mortgage, and complainant seeks to redeem, in the event, as we construe it, any part of the debt in controversy is decreed to be her debt, and, so far as mere averment goes, this would save the bill whether or not complainant is in possession. Galloway v. Hendon, 131 Ala. 280, and cases referred to on page 285, 31 So. 603.

On the evidence complainant's bill cannot be sustained in any aspect. We concur with the chancellor in his ruling that the debt secured by the mortgage was the debt of the wife, and that the mortgage was valid. Nor does it appear that there was a failure to advertise the foreclosure sale according to stipulation. It does appear that the mortgage stipulated for a sale, in the event of foreclosure, at Coffeeville, whereas the foreclosure deed recites a foreclosure at Grove Hill, and appellant now seeks to take advantage of this discrepancy. But this is not the ground on which relief was sought in the bill. It...