Dixon v. Hayes
| Decision Date | 02 February 1911 |
| Citation | 55 So. 164,171 Ala. 498 |
| Parties | DIXON v. HAYES ET AL. |
| Court | Alabama Supreme Court |
On Rehearing, April 27, 1911.
On Rehearing.
Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.
Suit by J. B. Dixon against Jane Hayes and another. From a decree dismissing the bill and cross-bills, complainant appeals. Affirmed.
A Latady, for appellant.
E. H Dryer, Spier, Whitaker, and Tomlinson & McCullough, for appellees.
The bill seeks redemption from a prior, unforeclosed mortgage and is exhibited by Dixon, whose assertion of right to redeem rests upon his averred succession to the right (equity) passing to the purchaser at the foreclosure sale under the power of a second mortgage. The first mortgage, from which redemption is sought, appears to have been executed June 27, 1887. The second mortgage, to the foreclosure of which, by sale under the power, complainant would trace his rights in the premises, appears to have been executed July 9, 1887. The law day of the latter (second) mortgage was January 9, 1888. The law day of the former (first) mortgage, if we correctly interpret its terms, was not later than six months after its date. The bill was filed May 14, 1907, upwards of 19 years after the law day of the elder mortgage. Upon submission, on pleading and proof, the chancellor dismissed the bill, as also the cross-bills. The appeal is by the original complainant alone.
The decree, as now assailed, must, we think, be affirmed. This conclusion might be justified upon other theories and findings; but those to be stated will suffice to determine the propriety of the dismissal of the bill entered below.
Where the mortgagee, after the law day of the mortgage, has been in possession of the subject for a period of 10 years, without an account for rents and profits, or other recognition of the equity of redemption remaining in the mortgagor, or in his privies, the right of the mortgagor, or of his privies, to redeem is finally barred. Coyle v. Wilkins, 57 Ala. 108; McCoy v. Gentry, 73 Ala. 105; Richter v. Nall, 128 Ala. 198, 30 So. 740; Love v. Butler, 129 Ala. 531, 30 So. 735.
It satisfactorily appears from the voluminous evidence submitted that John and Jane Hayes, the alleged prior mortgagees, or their successors in granted right and title, had been, before this bill was filed, in, and exercising such possession of the premises in question as effected to bar the right of redemption now sought to be enforced. So far as Kennedy (alleged mortgagor) is concerned, there can be no doubt, in the light of the evidence, that he was never in possession of the premises. Whatever the conveyance created by and between him and John and Jane Hayes, it is clear that they did not part with the possession of the premises. After amendment of the bill, this averment, referring to the Hayes possession, appears: "* * * And that the possession of the said Dallas Kennedy forthwith [i. e., June 27, 1887] passed to the said Jane Hayes, and that she has ever since been in the actual possession of the said lands, or in the receipt of the rents and profits thereof, and hath ever since continued in such possession and receipt [[amendment], but at all times in subordination to and recognition of the rights and obligations of the said Dallas Kennedy."
The purpose of the amendment was, of course, to avoid the barring effect of the rule before stated. The added...
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Cousins v. Crawford
...recognized as a mortgage by the parties and the mortgagor has retained possession of the land. Staples v. Barret, supra. See Dixon v. Hayes, 171 Ala. 498, 55 So. 164, and Ammons v. Ammons, 253 Ala. 82, 42 So.2d 776. So the question as to the correctness of the holding of the trial court tha......
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Stewart Bros. v. Ransom
... ... claim of inheritance or purchase. Mobile & G.R.R. Co. v ... Rutherford, 184 Ala. 204, 63 So. 1003; Dixon v ... Hayes, 171 Ala. 498, 502, 55 So. 164; Owen v. Moxon, ... The ... plaintiffs cannot place themselves without the statute by the ... ...
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Graham v. Graham
... ... Coyle v. Wilkins, 57 ... Ala. 108; Byrd v. McDaniel, 33 Ala. 18; Love v ... Butler, 129 Ala. 531, 30 So. 735; Dixon v ... Hayes, 171 Ala. 498, 55 So. 164. From the application of ... this principle to the possession of the husband, as statutory ... trustee, ... ...
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Earnest v. Fite
...and it is clear that the writer of the opinion inadvertently referred to the new statute instead of the old one. In Dixon v. Hayes, 171 Ala. 498, 502, 55 So. 164, 165, the opinion "By the terms of the statute (Acts 1892-93, p. 478; Code 1896, § 1541 et seq. See Code 1907, now section 2830),......