Ivy v. Hood

Decision Date20 June 1918
Docket Number6 Div. 735
Citation79 So. 587,202 Ala. 121
PartiesIVY v. HOOD.
CourtAlabama 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.

THOMAS J.

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, "there must be shown either actual fraud, on his part, in concealing his title; or that he was silent when the circumstances would impel an honest man to speak; or such actual intervention on his part, as in Storrs v. Barker, 6 Johns. Ch. (N.Y.) 166, 10 Am.Dec. 316, so as to render it just that, as between him and the party acting upon his suggestion, he should bear the loss." 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:

"It has been said that, in cases of alleged estoppel by conduct affecting the title to land, the record of the real title would furnish a means by which the other party might ascertain the truth, so that he could not claim to be misled, and could not insist upon an estoppel. This conclusion, if correct at all, is correct only within very narrow limits, and must be applied with the greatest caution. It must be strictly confined to cases where the conduct creating the alleged estoppel is mere silence. If the real owner resorts to any affirmative acts or words, or makes any representation, it would be in the highest degree inequitable to permit him to say that the other party, who had relied upon his conduct and had been misled thereby, might have ascertained the falsity of his representations." 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:

"It is insisted that the proceedings [the execution sale and the purchase thereat] were all conducted according to the forms of law. Very likely. Some of the most atrocious frauds are committed in that way. Indeed, the greater the fraud intended, the more particular the parties to it often are to proceed according to the strictest forms of law.
"Considering the amount of the stake to be won, and the overwhelming injury to be inflicted upon an unsuspecting woman, it is difficult to regard with equanimity the proceedings of the defendant as the year of redemption drew to its close, and after it had terminated. ***
"In any light in which Graffam's conduct may be viewed, it is clear that he did not pursue an open straightforward course. As we view the proofs, he evidently conceived the design of getting complainant's property for a mere nominal consideration, or else, of getting her into his power so as to compel her to comply with any exorbitant demands he might choose to make. He knew she was ignorant of the sale, and of the position in which the sale
placed her. He stood by and
...

To continue reading

Request your trial
66 cases
  • Federal Land Bank of New Orleans v. Ozark City Bank, 4 Div. 591.
    • United States
    • Supreme Court of Alabama
    • December 17, 1931
    ...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.
    • United States
    • Supreme Court of Alabama
    • March 22, 1934
    ...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
    • United States
    • Supreme Court of Alabama
    • August 30, 1954
    ...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
    • United States
    • Supreme Court of Alabama
    • February 14, 1920
    ...... 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 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT