Garrett v. Federal Land Bank of New Orleans

• Decision Date: 07 March 1940
• Docket Number: 5 Div. 298.
• Citation: 239 Ala. 191,194 So. 530
• Parties: GARRETT v. FEDERAL LAND BANK OF NEW ORLEANS ET AL.
• Court: Alabama Supreme Court

194 So. 530

239 Ala. 191

GARRETT v. FEDERAL LAND BANK OF NEW ORLEANS ET AL.

5 Div. 298.

Supreme Court of Alabama

March 7, 1940

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Bill for statutory redemption of real estate from mortgage foreclosure by Miles Gordon Garrett against the Federal Land Bank of New Orleans and others. From a decree fixing lawful charges to be paid on redemption, complainant appeals.

Affirmed.

Denson & Denson, of Opelika, D. W. Jackson, of LaFayette, and Jacob A. Walker, of Opelika, for appellant.

Will O Walton, of LaFayette, E. Herndon Glenn, of Opelika, and Fuller & Fuller, of LaFayette, for appellees.

BOULDIN Justice.

The bill was filed by appellant to effectuate his statutory right of redemption in real estate, sold under mortgage. Complainant is the mortgagor. The question of moment on this appeal is whether there was error in decreeing the unpaid balance of the mortgage debt to be a lawful charge on redemption.

The controlling facts, as we view the case, are these:

On March 28, 1936, the mortgage being in default, the mortgagee Federal Land Bank of New Orleans, foreclosed under power of sale and became the purchaser at $2,000, leaving an unpaid balance on the mortgage debt of $2,987.07.

Soon after foreclosure the Land Bank sold the lands in three separate tracts, to different purchasers, received part payment on each tract, executed deeds, and took a mortgage from each purchaser for balance due, as follows:

One tract to J. N. Davidson for $2,500, cash payment $500 purchase money mortgage for $2,000.

One tract to B. G. Clark for $1,700, cash payment $340, purchase money mortgage for $1,360.

One tract to A. W. Yates for $800, cash payment $160, purchase money mortgage $640.

In November of same year this bill was filed, making these several vendees and the Land Bank respondents. Several months after the bill was filed the Federal Land Bank executed to these vendees jointly an instrument in writing purporting to assign to them all interest in the mortgage debt and the note evidencing the same.

Appellant insists the assignment made pending the suit could not bring this unpaid balance in as a lawful charge; that the subject matter of litigation and the equities of the parties therein are determined as of the time of suit brought; that the statutory right of redemption cannot be impaired by dealings between the respondents pending the suit.

True, the initial pleading determines the subject matter brought within the lis pendens of the suit. The equities of complainant when suit brought cannot be defeated pending the suit save by his own act or default. National Building & Loan Association v. Cheatham et al., 137 Ala. 395, 34 So. 383; McAllister et al. v. Catchings, 210 Ala. 392, 98 So. 303; Macke v. Scaccia, 222 Ala. 359, 132 So. 880; Rodgers et al. v. Stahmer, 235 Ala. 332, 179 So. 229; 38 C.J. pp. 4, 616.

Under this principle, it may be conceded that if this property had been purchased at the foreclosure sale by these vendees, and were the sole parties respondent, they could not, after suit brought, acquire the unpaid balance on the mortgage debt, and thus impair the complainant's statutory right of redemption by thus increasing the lawful charges.

Lawful charges are defined by Code, § 10145. Subsection 4 reads: "If the redemption is made from a person who at the time of redemption owned the debt for which the property was sold, he must also pay any balance due on the debt, with interest thereon to date."

Appellees insist, and the trial court, on the supposed authority of Wilkes v. Hood et al., 237 Ala. 72, 185 So. 748, took the view, that "the time of redemption", within the meaning of the statute, is the time the right and terms of redemption are adjudicated by final decree. The question now before us was not presented nor considered in Wilkes v. Hood et al., supra.

In that case the respondents owned the unpaid balance on the mortgage debt when the bill was filed. The reference to the statute in that opinion must be understood in the light of the case in hand. Neither that decision, nor...