Henderson Law Co. v. Wilson

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Henderson Law Co. v. Wilson, 161 Ala. 504, 49 So. 845 (Ala. 1909)
• Decision Date: 24 May 1909
• Parties: HENDERSON-LAW CO. v. WILSON.

49 So. 845

161 Ala. 504

HENDERSON-LAW CO. v. WILSON.

Supreme Court of Alabama

May 24, 1909

Appeal from Chancery Court, Coffee County; W. O. Mulkey, Special Chancellor.

Suit by W. J. Wilson against the Henderson-Law Company. Decree for complainant. Defendant appeals. Affirmed.

M Sollie, for appellant.

J. F Sanders, for appellee.

ANDERSON J.

A court of equity has no jurisdiction to restrain or set aside a sale of mortgaged property, provided the mortgagee keeps within the terms of the power of sale and no case of fraud or oppression be shown. But if the power be attempted or exercised so as to pervert it from its legitimate purpose and to use it for the purpose of oppressing the debtor, or of enabling the creditor to acquire the property himself, a court of equity will enjoin the sale, or will set it aside afterwards. 2 Jones on Mortgages, § 1801; Struve v Childs, 63 Ala. 473; Vaughan v. Marable, 64 Ala. 60; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963. Or if a sale is prematurely made--that is, before the same is authorized under the terms of the mortgage--it will be set aside.

The bill avers that this sale was procured by Henderson to appress and harass the complainant; but we need not rest the equity of the bill upon this averment, as we think it elsewhere shows that the foreclosure was premature, as it was made some months before the maturity of the debt. It is true the mortgage provides for a foreclosure after default, or before default in case the grantor disposes of or parts with the possession of the property. The mortgage also authorizes the mortgagee or assigns to take possession of the property at any time before or after, etc., and to sell the same; but this does not authorize an arbitrary seizure and sale, and only means that they had the right to do so, before default, in case of a disposition or attempted disposal of the property. In other words, this clause was put there for protective, and not oppressive, purposes. If the debt was not due, and the mortgagor had not disposed of the property, and was not attempting to do so, it would be an unreasonable and unwarranted act for the mortgagee to seize and sell the property. This last clause must, therefore, be read in conjunction with the other two; for to read it in the alternative or disjunctive would render the first two useless and meaningless. If the last clause gave the mortgagee the right to seize and sell the...