Hayden v. Smith
| Decision Date | 05 May 1927 |
| Docket Number | 6 Div. 483 |
| Citation | 216 Ala. 428,113 So. 293 |
| Parties | HAYDEN v. SMITH. |
| Court | Alabama Supreme Court |
Rehearing Denied June 21, 1927
Appeal from Circuit Court, Jefferson County; William M. Walker Judge.
Bill in equity by Virginia Nash Smith against W.T. Hayden. From the decree, respondent appeals, and complainant assigns cross-errors. Affirmed.
Davis & Locke and Hayden & Hayden, all of Birmingham, for appellant.
Logan & Merchant, of Birmingham, for appellee.
We concur in the conclusion of the trial court that complainant failed to show that the debt for which the mortgage to Hayden was given was the debt of her husband and hence that she was not entitled to relief by way of cancellation of that mortgage. The case does not fall within the principle declared and applied in Lamkin v. Lovell, 176 Ala. 334, 58 So. 258, and in Staples v. City Bank, etc., 194 Ala. 687, 70 So. 115, because there was here no pre-existing debt due from complainant's husband to Hayden, but by a new and independent transaction the money was lent and delivered to the wife, and by her given to her husband. This did not offend the statute (Code 1923, § 8272), which inhibits the wife's suretyship for her husband's debt. Hall v. Gordon, 189 Ala. 301, 66 So. 493.
If the foreclosure sale under the senior mortgage of the Georgia Loan & Trust Company was valid and unimpeachable, then the redemption from that sale effected by Hayden, as junior mortgagee, vested in him an indefeasible legal title, and the mortgagor was without remedy by way of redemption from Hayden. Francis v. Sheats, 153 Ala. 468, 45 So. 241, 127 Am.St.Rep. 61. Under the redemption statutes as now amended in the Code of 1923 (sections 10140, 10141), priority of right to redeem is given to the mortgagor for 12 months after the sale, which can be defeated only by his inaction for 60 days after notice from any other person entitled to redeem of his intention to do so. That provision, however, was not in force when the foreclosure and redemption here involved occurred.
The trial court held that the postponement of the foreclosure sale from July 31, 1922, the date originally fixed by the newspaper advertisement, to September 4, 1922, by merely adding at the bottom of the notice "sale continued until September 4, 1922," without other publication or proclamation, was not sufficient.
Complainant also insists that the publication of the original advertisement of the sale, as well as of the postponement, was not made in a "newspaper published in said city [Birmingham]" within the requirements of the law, because the paper selected and used (the Ensley Enterprise) was a paper with a circulation of less than 500 copies, most of which were sent to Ensley, a submunicipality of Greater Birmingham, and outside places, and with practically no paid subscriptions.
The general rule is that notice of the postponement of such means as will give reasonable publicity of the fact is sufficient. 27 Cyc. 1476; Nichols v. Nichols, 192 Ala. 206, 212, 68 So. 186.
As an independent factor, we would be unwilling to say that the mode of announcing the postponement of this sale was so deficient in the requisite quality of publicity as to justify a court in setting aside the sale on that ground.
So, also, notwithstanding the very low quality of the newspaper in which the advertisement was carried, and its very limited circulation when compared with the population of Greater Birmingham (then 180,000, or more), those considerations, standing alone, would not be sufficient ground for setting aside the sale. But it must be observed that high authorities have held that, "while it is not imperative that he [the mortgagee] should choose that paper which will in fact give the utmost possible publicity to the notice, yet he must act in good faith and exercise reasonable care, and it will be ground for vacating the sale if he caused the notice to be printed in an obscure newspaper of very small circulation." 27 Cyc. 1473, citing Webber v. Curtiss, 104 Ill. 309; Stevenson v. Hano, 148 Mass. 616, 20 N.E. 200; Briggs v. Briggs, 135 Mass. 306; Wake v. Hart, 12 How.Prac. (N.Y.) 444. See, also, Montague v. Dawes, 14 Allen (Mass.) 369, 373.
These cases indicate a distinction--a just distinction, we think--between sales at which an innocent third party has become the purchaser for a fair price and sales at which the mortgagee is himself the purchaser for an unfair price, especially where the mortgagor is not present at the sale, and had no actual notice or knowledge thereof.
In the instant case the property was worth in cash not less than $4,000. The mortgagee was the purchaser for the grossly...
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IN RE SHARPE
...bona fide, and to adopt all reasonable modes of proceeding, in order to render the sale most beneficial to the debtor.'" Hayden v. Smith, 216 Ala. 428, 113 So. 293, 295; Hunter-Benn & Co. Company v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348. See, also, Dewberry v. Bank of Standing Rock,......
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In re Sharpe
...Relationship One of the earlier Alabama cases reported on the trust relationship between a mortgagor and a mortgagee is Hayden v. Smith, 216 Ala. 428, 113 So. 293 (1927). In Hayden the Supreme Court of Alabama recognized: But it must be observed that high authorities have held that, "while ......
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Tidmore v. Citizens Bank & Trust
...v. Farrior, 187 Ala. 181, 65 So. 364 (1914) ; Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105 (1920) ; Hayden v. Smith, 216 Ala. 428, 113 So. 293 (1927) ; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 (1928) ; First National Bank v. Wise, 235 Ala. 124, 177 So. 636 (1937) ; J.H. ......
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...unfairness, or culpable mismanagement, and therefore be sufficient ground for setting the sale aside.’" Hayden v. Smith, 216 Ala. 428, [430,] 113 So. 293[, 295] (1927)."Although both the Lenders and the Borrowers rely on Hayden, each point to a different aspect of the holding, which admitte......