Drake v. Rhodes

• Decision Date: 04 June 1908
• Citation: 46 So. 769,155 Ala. 498
• Parties: DRAKE ET AL. v. RHODES.
• Court: Alabama Supreme Court

46 So. 769

155 Ala. 498

DRAKE ET AL. v. RHODES.

Supreme Court of Alabama

June 4, 1908

Appeal from Chancery Court, Conecuh County; W. L. Parks, Chancellor.

Bill by A. P.J. Drake and others against F. M. Rhodes. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

James F. Jones, for appellants.

L. M Lane and A. O. Lane, for appellee.

DENSON J.

Complainants seek the cancellation of a mortgage and to redeem certain lands which were mortgaged to secure an indebtedness due from them to the respondent (mortgagee). The bill does not seek relief under the statutory right of redemption, but proceeds entirely upon the theory that there has been no valid foreclosure of the mortgage. The mortgage was executed on the 21st day of January, 1893, and was due October 1, 1893. It confers on the mortgagee, upon default in the payment of the debt secured at the time stipulated, the power to sell the land before the warehouse door in Georgiana, "after giving 10 days' notice posted at said warehouse door." It also gives the mortgagee the privilege of becoming the purchaser at the sale made under the power in the mortgage. The bill as amended avers "that orators are informed that the defendant, said F. M. Rhodes, made some sort of an effort or attempt to foreclose said mortgage, of which Exhibit A, hereto attached, is a copy, on the 26th day of May, 1896, at which attempted sale the said F. M. Rhodes became the purchaser of the land described in the mortgage but orators charge and allege that said mortgage was never foreclosed according to the terms and stipulations contained in said mortgage; that said foreclosure sale was not advertised and notice given of said intended sale as required by the terms and stipulations of said mortgage, and that no conveyance has ever been made of said lands to the purchaser at said attempted foreclosure sale; that said foreclosure sale, or intended foreclosure sale, under the power contained in said mortgage, was never reduced to writing." It will be observed that the attack upon the sale is rested upon two grounds: First, alleged defective advertisement or notice of the sale; second, that no memorandum of the sale was made and therefore that it is within the statute of frauds.

The theory of the bill, from this latter point of view, is that there can be no valid foreclosure of a mortgage under a power of sale contained therein, where such sale rests in parol. It is asserted in brief of appellants' counsel that this proposition is expressly decided and upheld in the case of Jackson v. Scott, 67 Ala. 99. This may be conceded but, unfortunately for appellants' contention, the case relied on is overturned by later cases decided by this court. Tipton v. Wortham, 93 Ala. 321, 9 So. 596, and cases there cited. It is said in Durden v. Whetstone, 92 Ala. 480, 482, 483, 9 So. 176, that "the mortgagor cannot avail himself of the defense that the sale, resting in parol, is void under the statute of frauds. Such sale being voidable only, and this defense personal, it is obligatory on the mortgagee and the purchaser, so long as they treat it as binding. A deed or note or memorandum in writing is not essential." And in Mewburn's Heirs v. Bass, 82 Ala. 622, 2 So. 520, it is said that the following propositions are settled by the case of Cooper v. Hornsby, 71 Ala. 62: "First. If a sale under a power in a mortgage is regular, even though no conveyance is made, it cuts off the equity of redemption, and reduces it to a mere statutory right. Second. If there be no writing signed to take the contract without the statute of frauds, only the mortgagee and the purchaser can take advantage of the omission. * * * The mortgagor has no other interest than that he obtain credit and benefit of the amount bid." The stipulation in the mortgage conferring on the mortgagee the privilege...