Ivy v. Hood
Decision Date | 20 June 1918 |
Docket Number | 6 Div. 735 |
Citation | 79 So. 587,202 Ala. 121 |
Parties | IVY v. HOOD. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.
Bill by C.A. Ivy against J.W. Hood. Decree for defendant, and complainant appeals. Reversed and remanded, with directions.
J.H Bankhead, Jr., of Jasper, for appellant.
A.F Fite and L.D. Gray, both of Jasper, for appellee.
The trial judge states, as the issue, whether or not respondent did anything which reasonably had the effect of lulling complainant into a supposed "security of his rights," and thereby "caused him to fail to redeem" his lands from the mortgage foreclosure within the statutory period.
The decree recites that the foreclosure deed of date January 24 1912, made an exhibit to the bill, was duly recorded in February, 1912. Under our registration statute, this record was notice, not only of the fact of foreclosure (Gill v. More, 76 So. 453; Veitch v. Woodward Iron Co., 76 So. 124; Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190; Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807), but of any inadequacy of consideration on which such sale was made (Drum & Ezekiel v. Bryan, 193 Ala. 395, 397, 69 So. 483).
In Jackson v. Tribble, 156 Ala. 480, 489, 47 So. 310, the declaration was that, if the mortgagee has power to purchase at a foreclosure sale and becomes the purchaser, he has the power to execute a deed to himself which will convey the title.
The recitals in the deed in the instant case, of foreclosure made to himself by J.W. Hood, after advertisement and sale in accordance with the terms, were prima facie evidence of the stated facts as against the mortgagor and his privies. Dinkins v. Latham, 79 So. 493; Johnson v. Wood, 125 Ala. 330, 28 So. 454; Naugher v. Sparks, 110 Ala. 572, 18 So. 45; Harton v. Little, 176 Ala. 267, 57 So. 851.
After the foreclosure of complainant's mortgage dated September 3, 1908, and the purchase by and conveyance to respondent of the lands in question on January 24, 1912, complainant had the statutory right of redemption thereof which might be exercised within two years, as provided by statute (Code 1907, § 5746); and the statutory right of redemption is subject to assignment by the mortgagor (Code, § 5746; Cowley v. Shields, 180 Ala. 48, 52, 60 So. 267; Johnson v. Davis, 180 Ala. 143, 60 So. 799; Baker, Lyons & Co. v. Eliasberg Bros. Merc. Co., 79 So. 13); but the debtor assignee could not assign this statutory right to redeem (Leith v. Galloway Coal Co., 189 Ala. 204, 66 So. 149; Patterson v. Holmes, 79 So. 581). The expressions to the contrary effect in Lewis v. McBride, 176 Ala. 134, 57 So. 705, have been qualified by the foregoing authorities. Upon failure to redeem within the time prescribed by the statute, the title becomes absolute in the purchaser at a foreclosure sale; that is, if no superior or estopping equity has intervened to prevent the assertion of such title. Baker-Lyons Co. v. Eliasberg Merc. Co., 79 So. 13.
After the valid foreclosure, at which the mortgagee was the purchaser under the terms of the mortgage, bidding a sum in excess of the mortgage indebtedness, he ceased to hold as mortgagee, but held as purchaser. Kinnaird v. Hale, 76 So. 954. On the other hand, if a mortgagee purchases for a sum less than the debt, he still holds as mortgagee; and for such reason it is held that redemption may not be had for an amount less than the mortgage debt. Cowley v. Shields, supra; Code, § 5749, subd. 4. A mortgagee in possession as purchaser at his own mortgage sale is generally not required to give notice of his foreclosure and purchase, but may remain silent. However, equity and good conscience require that he, as such mortgage purchaser, do no affirmative act or make no declaration on which the mortgagor, not having the actual knowledge of the fact of foreclosure, may rely, and thereby prevent mortgagor from effecting redemption within the statutory period. That is, the mortgagee purchasing at his own sale must not thereafter, by word or act, work an estoppel against himself as purchaser that would prevent him from asserting his right or title so acquired against him who has the statutory right of redemption.
The general elements of such an estoppel are: (1) Conduct, which may consist of acts, language, or an estopping or culpable silence, not a mere silence, that amounts to a representation or concealment of a material fact (2) actually known or necessarily imputed to be known to the party estopped at the time of the conduct, (3) the truth concerning which fact was unknown to the party in whose behalf the estoppel is to operate, "at the time when the conduct was done, and at the time when it was acted upon by him." (4) The conduct must have been done with the expectation, or under such circumstances as that it is probable and natural, that it will be acted upon, and (5) relied upon by the other party, who, thus relying, is led to act upon that conduct (6) in such manner as to change his position with reference to the subject-matter or properties. 2 Pom.Eq.Jur. §§ 805, 807. (7) To preclude the owner of land from asserting his legal title or interest under such circumstances, McLain v. Greil Bros., 72 So. 410; Dinkins v. Latham, 154 Ala. 90, 97, 45 So. 60; Hoene v. Pollak, 118 Ala. 617, 623, 24 So. 349, 72 Am.St.Rep. 189; Porter v. Wheeler, 105 Ala. 451, 17 So. 221; Prickett & Maddox v. Sibert, 75 Ala. 315; Hendricks v. Kelly, 64 Ala. 388; Kelly v. Hendricks, 57 Ala. 193; Gimon v. Davis, 36 Ala. 589; Chapman v. Hamilton, 19 Ala. 121; Doe ex dem. McPherson v. Waiters, 16 Ala. 714, 50 Am.Dec. 200; Knauff & T. Co. v. Elkhart Co., 153 Wis. 306, 141 N.W. 701, 48 L.R.A. (N.S.), 744. 778; Wiser v. Lawler, 189 U.S. 260, 271, 23 Sup.Ct. 624, 47 L.Ed. 802: Brant v. Virginia Iron & Coal Co., 93 U.S. 326, 337, 23 L.Ed. 927.
Concerning knowledge, and the means of knowledge of the material facts, by the party invoking the estoppel, at the time of the conduct on which the estoppel is rested and at the time when the estopping conduct is acted, Mr. Pomeroy says:
Eq. Jur. vol. 2, §§ 809, 810, 876, et seq.
On this question it has been declared generally by our court that, where the instrument under which the person claims title is duly of record, no mere silence on his part as to his title will work an estoppel, since the registration provided by statute is all the notice one is required to give, so long as he remains passive. Steele v. Adams, 21 Ala. 534, 541; Porter v. Wheeler, supra. And in Dixie Grain Co. v. Quinn, 181 Ala. 208, 217, 61 So. 886, the recording of a mortgage containing a power of sale was declared to operate as a notice of such power, and of any title acquired by a purchaser thereunder, although the foreclosure is not recorded. If, however, a person holding under a recorded instrument does not remain merely passive, but does some affirmative act to mislead or deceive, he may be estopped to assert title against persons dealing with his property as their own. 11 Am. & Eng.Ency.Law (2d Ed.) p. 436; Porter v. Wheeler, supra, 105 Ala. 458, 17 So. 221; Brewer v. Brewer & Logan, 19 Ala. 481; Prickett & Maddox v. Sibert, supra; Sims v. Riggins, 77 So. 399.
In Graffam v. Burgess, 117 U.S. 180, 186, 189, 190, 192, 6 Sup.Ct. 686, 689 , the bill was to redeem, and was successfully maintained, though filed after expiration of the period allowed by the statutes of Massachusetts for redeeming lands sold under execution. Mr. Justice Bradley, delivering the opinion, said:
To continue reading
Request your trial-
Federal Land Bank of New Orleans v. Ozark City Bank, 4 Div. 591.
...Ala. 591, 79 So. 13; Wittmeier v. Cranford, 199 Ala. 1, 73 So. 981; Leith v. Galloway Coal Co., 189 Ala. 204, 66 So. 149; Ivy v. Hood, 202 Ala. 121, 122, 79 So. 587; Neuberger v. Felis et ux., 203 Ala. 142, 82 So. Toney v. Chenault, 204 Ala. 331, 85 So. 742; Johnson v. Davis, 180 Ala. 143, ......
-
Metropolitan Life Ins. Co. v. James, 8 Div. 507.
...contract as set up by that plea. Cooper v. Rowe, 208 Ala. 494, 94 So. 725. There may be a vitiating and fraudulent silence. Ivy v. Hood, 202 Ala. 121, 79 So. 587; Electric Co. v. Fried, 218 Ala. 684, 119 So. 685. The burden was upon the beneficiary to prove that the assured died within the ......
-
Williams v. Kitchens, 7 Div. 204
...is discovered within the contemplation of the law when it is readily discoverable or when a party is put upon notice thereof. Ivy v. Hood, 202 Ala. 121, 79 So. 587; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124, authorities collected in Gill v. More, 200 Ala. 511, 520, 76 So. 453; G......
-
Edmondson v. Jones
...... that misled or deceived the purchaser of his real or personal. properties at the purported guardian's sale thereof, or. that so misled or deceived the alleged guardian to his. injury. This was an essential element of equitable estoppel. recently announced in Ivy v. Hood, 202 Ala. 121,. 123, 79 So. 587, 589, to wit:. . . "(1) Conduct, which may consist of acts, language, or an. estopping or culpable silence, not a mere silence, that. amounts to a representation or concealment of a material fact. (2) actually known or necessarily imputed to be known to ......