Durden v. Whetstone

• Decision Date: 08 April 1891
• Parties: DURDEN ET AL. v. WHETSTONE ET AL.
• Court: Alabama Supreme Court

9 So. 176

92 Ala. 480

DURDEN ET AL. v. WHETSTONE ET AL.

Supreme Court of Alabama

April 8, 1891

Appeal from chancery court, Autauga county; S. K. MCSPADDEN Chancellor.

J M. Chilton and J. A. Holmes, for appellants.

Semple & Gunter, for appellees.

CLOPTON J.

The bill is filed by appellants, as the heirs of George W F Durden, against the administrators and heirs of Mills Rogers and seeks to redeem the lands described from a mortgage executed by Durden to Rogers, January 13, 1873. Durden died in March, 1881, and Rogers in July, 1888. The bill is framed with a double aspect,-the first being that there was never any foreclosure of the mortgage, an attempted sale under the power contained therein not having been consummated or carried into effect; and the second that, if there was such sale, the mortgagee became the purchaser at his own sale. The evidence shows that Rogers sold the lands under the power of sale on the 3d day of December, 1881, and that in its execution all the prerequisites to a sale under the power were complied with; notices of the time, place, and terms of sale were posted as required; and the sale was made at the place and in the manner prescribed in the mortgages,-a regular sale. If it was made in good faith, and carried into effect, it operated to cut off complainants' equity of redemption as effectually as a strict foreclosure by decree of a court of equity, unless the mortgagee became the purchaser, and the complainants have seasonably disaffirmed the sale, restoring the relation of mortgagor and mortgagee. Harris v. Miller, 71 Ala. 33. The first question then, presented is, was Rogers the real purchaser at his own sale? The uncontradicted evidence shows that Livingston bid off the lands at the sale at the amount due on the mortgage for himself and Saddler by previous arrangement between them, with which arrangement Rogers had nothing to do, except he agreed to give them reasonable time to make the payment. There was no other agreement or understanding with him in relation to the purchase of the lands. A few days thereafter Livingston declined to take an interest in the lands, and Saddler, his co-purchaser, took upon himself the entire bid. A short time afterwards Saddler saw Rogers, and told him that, as the lands did not join his, he would be unable to attend to them so as to pay the debt, and, as Livingston had declined, he wished him to take the lands at the bid, to which Rogers agreed. The tenants in possession had rented the lands for 1881 from the mortgagor before his death. It is not shown that Rogers claimed or received any of the rent for that year, and all the tenants testify that he made no contracts for rent for 1882 until the 1st day of January, which evidently was after he had taken the lands...