Harry J. Frahn Co., Inc. v. National Realty Management Co., Inc.

• Decision Date: 08 December 1938
• Docket Number: 8 Div. 930.
• Parties: HARRY J. FRAHN CO., INC., v. NATIONAL REALTY MANAGEMENT CO., INC., ET AL.
• Court: Alabama Supreme Court

185 So. 162

236 Ala. 681

HARRY J. FRAHN CO., INC., v. NATIONAL REALTY MANAGEMENT CO., INC., ET AL.

8 Div. 930.

Supreme Court of Alabama

December 8, 1938

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Bill by Harry J. Frahn Company, Inc., against the National Realty Management Company, Inc., and others, to cancel foreclosure deed and deed by purchaser at foreclosure sale, for accounting, etc. From a decree sustaining a demurrer to the bill and dismissing it, complainant appeals.

Affirmed.

T. M Thomas, of Sheffield, for appellant.

Smith Windham, Jackson & Rives, of Birmingham, and W. H. Mitchell of Florence, for appellees.

THOMAS Justice.

The action of the trial court in sustaining a demurrer to the bill as a whole and as last amended is challenged by the appeal.

The bill alleged irregular foreclosure of a mortgage and deed executed pursuant thereto, and prayed that it be set aside and held for naught, that an accounting be had as to the indebtedness due or to become due, and that due credit be given for use and occupation and for moneys received for rentals.

The execution of the powers in a mortgage, and the statutes applicable thereto, requiring notice to be given of foreclosure, and the duty of a mortgagee in the premises were recently construed and applied in Appelbaum et al. v. First Nat. Bank of Birmingham et al., 235 Ala. 380, 179 So. 373, and De Moville v. Merchants & Farmers Bank, 233 Ala. 204, 170 So. 756.

When the amended pleading is looked to, as aided by its exhibits ( Grimsley v. First Ave Coal & Lumber Co., 217 Ala. 159, 115 So. 90), it is made to appear that the mortgage was executed November 15th, 1927, foreclosed on October 10, 1935, and the National Realty Management Company, Inc., became the purchaser under conveyance of date of April 6, 1936. One day before the expiration of the two year period, on October 9, 1937, the Frahn Company filed the original bill against Charles W. Hoff, as trustee. In that pleading the Greyling Realization Corporation was not a party.

The exhibits show that on June 4th, 1936, before the filing of the original bill, the purchaser at the foreclosure sale conveyed the mortgaged premises to the Greyling Realization Corporation, one of the appellees, and party to the amended bill of date of March 1, 1938.

The amended bill further shows, that on June 4, 1936 (before the bill was filed), the conveyance to Greyling was filed for record in the office of the probate judge in the county where the land lies on June 22, 1936, and said conveyance was duly recorded on June 25, 1936.

It is thus apparent that the bill bringing in Greyling Realization Corporation as a party on March 1, 1938, was more than two years after the date of foreclosure, which was had on October 10th, 1935.

The amended bill merely alleges irregularities in foreclosure notice, and contains prayer for cancellation for such cause. There is no allegation of fraud, oppression or inadequacy of price (De Moville v. Merchants & Farmers Bank, 233 Ala. 204, 170 So. 756), that vitiates under our rule.

We have indicated that the complete pleadings and exhibits show that Charles W. Hoff, as trustee in the mortgage in 1927, had no interest in the property when the bill was filed in 1937; that National Realty Management Company, Inc., had been divested...