Drum & Ezekiel v. Bryan

• Decision Date: 11 February 1915
• Docket Number: 509
• Citation: 193 Ala. 395,69 So. 483
• Court: Alabama Supreme Court
• Parties: DRUM & EZEKIEL et al. v. BRYAN et al.

69 So. 483

193 Ala. 395

DRUM & EZEKIEL et al. v. BRYAN et al.

No. 509

Supreme Court of Alabama

February 11, 1915

Response to Application for Rehearing, June 30, 1915

Appeal from Chancery Court, Crenshaw county; B.B. Gardner Chancellor.

Bill by R.F. Bryan and others against Drum & Ezekiel and others. Decree for complainants, granting relief in part, and respondents appeal. Reversed and rendered.

See also, 40 So. 131.

C.E Hamilton, of Greenville, and Steiner, Crum & Weil, of Montgomery, for appellants.

M.W. Rushton, of Luverne, and D.M. Powell, of Greenville, for appellees.

MAYFIELD J.

The original bill in this case was filed September 23, 1897. It sought, in the alternative: (1) To set aside a foreclosure sale of a mortgage, and to be allowed to redeem; and (2) to cancel the foreclosure deed as a cloud on complainants' title, on the ground that the mortgage debt was fully paid when the foreclosure was had. The chancellor granted the relief prayed, and on appeal that decree was reversed, on the grounds that as a bill to set aside the foreclosure and to redeem it was filed too late, more than two years after the foreclosure, and that as a bill to remove a cloud from title it failed to show that complainants were in possession when the bill was filed. See report of case and opinion, 40 So. 131, not officially reported.

When the case went back, the bill was amended several times, by alleging that the complainants were in the possession when the bill was filed, that the mortgage debt was tainted with usury, that the purchase price was grossly inadequate, that Drum & Ezekiel had sold and conveyed the lands to Greil Bros., a corporation, and that Drum & Ezekiel had no just interest in the land. The respondents demurred, and answered the bill, denying each of the asserted equities of the bill. The case was submitted on the pleadings and the proof, and the chancellor granted the relief on the theory that complainants have the right to redeem, but denied the relief as for canceling the deed as a cloud on title. From this decree the respondents prosecuted this appeal.

We agree with the chancellor that complainants must fail on the theory of the bill which seeks to have the foreclosure deed canceled as a cloud on complainants' title. The complainants did not have such possession as would support a bill for that purpose.

We cannot agree with the chancellor, however, that the complainants are entitled to relief under the other theory of the bill, which seeks to have the foreclosure sale set aside, and to be allowed to redeem. As was ruled on the former appeal, the bill was filed more than two years after the foreclosure sale, and after the deed was executed to the purchaser, and after the purchaser had reconveyed to the mortgagee. This deed recited the consideration paid, and the deed was duly recorded, and the parties must have had notice of the inadequacy of the price bid.

The chancellor finds that the mortgage debt was paid at the time of the foreclosure. If so, then there can be no redemption, and the only possible relief in chancery would be to have the deed canceled as a cloud on title; and as to this the chancellor finds that complainants were not in possession when the bill was filed, and therefore that they cannot have the deed canceled as a cloud on title. This was also the holding on the former appeal.

If the mortgage debt was paid in full when the foreclosure was had then the sale was void, and the complainants could have recovered in an action at law. It was expressly ruled on the former appeal in this case that, if the mortgage debt was paid when the foreclosure sale was had, the complainants' remedy was at law, provided they were not in possession; and we and the chancellor both found that they were not. Moreover, it appears that there has been one action of ejectment in...