Fellows v. Burkett

• Decision Date: 23 May 1929
• Docket Number: 4 Div. 426.
• Citation: 122 So. 808,219 Ala. 601
• Parties: FELLOWS ET AL. v. BURKETT.
• Court: Alabama Supreme Court

122 So. 808

219 Ala. 601

FELLOWS ET AL. v. BURKETT.

4 Div. 426.

Supreme Court of Alabama

May 23, 1929

Rehearing Denied June 20, 1929.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Bill to redeem from mortgage foreclosure by Mrs. P. V. Burkett against F. L. Fellows, K. L. Forrester, and S.W. Burkett. From a decree overruling a demurrer to the amended bill respondents appeal. Affirmed.

Lee &amp Tompkins, of Dothan, for appellants.

John W Rish, of Dothan, for appellee.

THOMAS J.

The bill as amended is free from grounds of demurrer assigned. It is filed by the widow and not by the mortgagor; she had the right to protect her homestead interests in the property by its redemption.

The bill avers, among other things, that the mortgagor married complainant after the mortgage securing the original indebtedness was executed; that she knew nothing of the status of that indebtedness; that her husband kept no books that would inform her; that appellants purchased the mortgage after the death of the mortgagor for the purpose of tacking thereto or collecting thereby foreign, improper, and illegal claims to that of the mortgage indebtedness so secured; and that appellants demanded attorneys' fees. She submits herself fully to the jurisdiction of the court and avers her readiness and ability to pay the amount ascertained by the court to be due on the mortgage.

There being illegal or unsecured items demanded of the mortgagor, or his successor in title, on the effort of his widow to redeem-this being the widow with the homestead rights-the forfeitures created by statute, as to delivery of possession, etc., do not obtain. Johnson v. Williams, 212 Ala. 319, 102 So. 527. See, also, as to maintaining a bill without tender, Johnson v. Davis, 180 Ala. 143, 60 So. 799; Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Dorrough v. Barnett, 216 Ala. 599, 114 So. 198.

The general rule is, when the statement of lawful charges claimed under the mortgage or by a purchaser at foreclosure thereof is exaggerated or had tacked thereto illegal demands or charges not secured by the mortgage or authorized by the law, or if the same is "so questionable that the redemptioner acting in good faith cannot reasonably ascertain the amount that should be tendered for redemption, no tender" is necessary or need be made before the bill for redemption is filed. The ruling of the court on the eleventh ground of demurrer to the bill as amended is free from error.

The terms for the foreclosure and sale of real property prescribed by the mortgage are: "If default be made in the payment of any obligation herein secured or the grantors shall in any way dispose or part with possession of any of said property, or if said mortgagee or its successors or assigns shall see fit to do so it is authorized, before or after the maturity of said debt, at any time to take possession of said personal property, to sue for or otherwise collect in its own name and at our expense, said rent and advances, and choses in action due to us, to sell said personal property and real estate at public outcry or private sale, and to sell the same before or after and whether in possession at time of sale or not and with or without notice of the time, place and terms of sale, at its election; and in case it gives notice, to determine what kind it will give to make said sale when, as and where it shall seem best to it, for cash or on credit; to become purchaser at any such sale of either the real or personal property said, to make deeds of all such sales, and accept the amount bid, and waive the right to question its adequacy."

It is noted that this power of sale is silent as to the place, terms of sale, or notice of date of the attempted foreclosure; that where the instrument is silent as to place or terms of sale or character of notice required to be given, the sale "may be made at the courthouse door of the county wherein the land is situated, after condition broken, for cash to the highest bidder, after 30 days' notice of the time, place, and terms of sale by publishing such notice," as required by section 9011, Code of 1923.

The bill will be taken with and aided by its exhibits of the mortgage, the foreclosure deed, and answer to notice. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90.

The alleged foreclosure is evidenced by exhibit deed to assignees and purchasers, which contains the following: "*** property therein described was advertised for sale for five days, by written notice giving notice of the time, place and terms of sale, said notice having been posted in a public place in the town of Ashford, Alabama, on the 18th day of October, 1927, and continuing to be posted until and including the 22nd day of October, 1927, said notice of sale being signed by Fellows & Forrester, the assignees and owners of said mortgage and the debts secured therein, and whereas in strict compliance with the power of sale contained in said mortgage, the property therein described was offered for sale to the highest bidder for cash on the 22nd day of October, 1927, in front of Fellows & Forrester's store in the town of Ashford, Alabama, and the same was purchased by Fellows &...