Garst v. Johnson

• Decision Date: 14 October 1948
• Docket Number: 8 Div. 357.
• Citation: 37 So.2d 183,251 Ala. 291
• Parties: GARST v. JOHNSON et al.
• Court: Alabama Supreme Court

37 So.2d 183

251 Ala. 291

GARST v. JOHNSON et al.

8 Div. 357.

Supreme Court of Alabama

October 14, 1948

Stockton Cooke, Jr., of Sheffield, for appellant.

Kirk & Rather, of Tuscumbia, for appellees.

LAWSON Justice.

R. M Garst and E. R. Cary, on April 28, 1925, executed a promissory note payable to John W. Johnson one year after date. On the same day, as security for the payment of the note, Garst and Cary, together with their wives, executed a mortgage to Johnson covering certain real property in Colbert County. Garst subsequently acquired Cary's rights in the property.

The mortgage in question was foreclosed on April 24, 1933. At the foreclosure sale R. H. Huston purchased the property on behalf of his wife, Mrs. Daisy V. Huston, for the sum of $1,185.73. On May 22, 1933, John W. Johnson, the mortgagee as attorney in fact for the mortgagors, under the powers of sale contained in the mortgage, executed a foreclosure deed to Mrs. Daisy V. Huston.

On March 30, 1935, R. M. Garst filed this bill in the circuit court of Colbert County, in equity, against John W. Johnson R. H. Huston, and Daisy V. Huston. Testimony was noted by the respective parties on May 14, 1946. On May 30, 1946, the trial court rendered its decree denying relief to complainant and dismissing his bill. From that decree complainant appealed to this court.

The bill is most difficult of analysis. It is not clear from either the averments of the bill or the prayer for relief exactly what the complainant was seeking to accomplish. There are some averments which seem to indicate that complainant was seeking to exercise a statutory right of redemption. But other averments, when considered in connection with the prayer, evidence an effort on the part of complainant to enforce the equity of redemption, electing to have the foreclosure of the mortgage and the deed executed thereunder declared to be void. Alternative relief is not sought.

Counsel for appellant, in brief filed in this court, treats the bill as one filed by a mortgagor to exercise his equity of redemption. We will so consider it. In this connection we quote from brief of counsel for appellant: 'The bill in this cause was filed by the mortgagor to exercise his equity of redemption due to the premature foreclosure of the mortgage and prays for an accounting of the amount due on said mortgage indebtedness and an opportunity to pay such amount.'

Complainant's right to relief, therefore, was dependent upon the proof showing that the foreclosure was invalid. In Summerford v. Hammond et al., 187 Ala. 244, 65 So. 831, it was said:

'As has been frequently said by this court, the equity of redemption is essentially different from the statutory right. The latter never exists until the former is barred. A valid foreclosure destroys the one and creates the other; but an invalid sale neither destroys the one nor creates the other. Rainey v. McQueen, 121 Ala. 191, 25 So. 920; Bolling v. Jones, 67 Ala. 508.

'A sale under and in accordance with the powers contained in a mortgage cuts off the equity of redemption as effectually as a foreclosure in equity.'

To like effect are the following cases: Martin v. Martin, 237 Ala. 512, 187 So. 732; Moseley v. Ritter et al., 226 Ala. 673, 148 So. 139; Randolph et al. v. Bradford et al., 204 Ala. 378, 86 So. 39; Thompson v. Suttle, 244 Ala. 687, 15 So.2d 590.

The proof does not sustain complainant's contention that the foreclosure sale was had without good and legal notice of the same in accordance with the powers contained in the mortgage.

The mortgage contained the following provision: 'Provided nevertheless that if we pay the amount due upon the said note above described, on or before the day when the same falls due, according to the tenor and stipulations thereof, then this conveyance is to become void; but on our failure to pay said note, as stipulated therein, in par [sic] or in full, or should we fail to keep all taxes assessed against said real estate paid, then, or in either event above enumerated, the indebtedness herein evidenced shall become at once due and payable and the said John W. Johnson is hereby authorized to take possession of the real estate before described, and after giving notice of the time, place and terms of sale, by publication once a week for three successive weeks in some newspaper published in Colbert County, Alabama, may proceed to sell the same to the highest bidder for cash in front of the Courthouse door of Colbert County, Alabama, and execute title to the purchaser, or purchasers and devote the proceeds of the sale to the payment, first, of the expense of taking possession of the real estate, advertising, selling and conveying the same, together with a reasonable attorney's fee for foreclosing this mortgage, whether under the power of sale herein contained, or otherwise, second, of the amount, together with interest and lawful charges that may be due upon the same note above described, and lastly, if there be any surplus of the proceeds the same is to be returned to the undersigned.'

From the recitals of the foreclosure deed in evidence and from other evidence it appears without contradiction that the mortgagee did advertise the mortgaged property for sale once a week for four successive weeks in a newspaper published in Colbert County, in each of which advertisements notice was given that the foreclosure sale would be held on the 24th day of April, 1933, in front of the courthouse door in Colbert County, Alabama, within the legal hours of sale, and that the mortgaged property would be offered for sale at public outcry to the highest bidded for cash.

It is now...