Johnson v. Wood

Decision Date08 February 1900
Citation125 Ala. 330,28 So. 454
PartiesJOHNSON ET AL. v. WOOD ET AL.
CourtAlabama Supreme Court

McClellan C.J., dissenting.

Appeal from city court of Gadsden; John H. Disque, Judge.

Bill by Thomas L. Johnson and others against J. H. Wood and others to redeem from a foreclosure sale of land. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

The bill in this case was filed by the appellants and averred the following facts: On February 19, 1891, one Samuel L. Cox and his wife, E. W. Cox, executed and delivered a mortgage to the Land Mortgage Investment & Agency Company of America Limited, upon certain lands specifically described in the bill. A copy of this mortgage was attached as an exhibit to the bill. On October 31, 1892, Bamberger, Bloom & Co. recovered a judgment against the said S. L. and E. W. Cox and upon this judgment executions were regularly issued and levied upon lands which were included in the mortgage above referred to. Under these executions the said lands were, on May 20, 1895, sold by the sheriff to the complainants, Thomas L. Johnson and W. H. Barnes, and the sheriff gave them a sheriff's deed to said lands. It was then averred that on April 13, 1896, the Land Mortgage Investment & Agency Company of America, Limited, attempted to sell the lands conveyed in the mortgage under the power contained therein, "but that notice required by said mortgage of the sale was not given." At this sale one Benjamin Graham became the purchaser, and subsequently, on April 20, 1896, conveyed the said lands to J. H. Woods and J. W. Penn. That, all of the purchase money not being paid, said Woods and Penn, for the balance thereof executed another mortgage upon the said lands to the Land Mortgage Investment & Agency Company of America Limited, and part of this mortgage debt remained unpaid at the time of the filing of the bill. J. H. Woods and J. W. Penn and the Land Mortgage Investment & Agency Company of America, Limited, were made parties defendant to the bill.

The prayer was that a reference be held by the register to ascertain the amount due on the mortgage and that the complainants be allowed to redeem upon the payment of the amount so ascertained, and that the respondents be required to convey to the complainants all such title, right, and interest which they might have to the lands described. The facts of the case pertaining to the only question reviewed on the present appeal are sufficiently stated in the opinion.

On the final submission of the cause upon the pleadings and proof the chancellor decreed that the notice required by the mortgage to be given of the sale under the power was sufficiently complied with, and that the complainants were not entitled to the relief prayed for. From this decree the complainants appeal, and assign the rendition thereof as error.

Motley & Short, for appellants.

Amos E. Goodhue and W. R. Nelson, for appellees.

HARALSON J.

There is but the one question presented and insisted on,-whether or not the three weeks' notice required to be given for the sale of the property in question under the power in the mortgage, was given in conformity to the terms of the mortgage.

The mortgage required that notice of sale under the power should be given, "by advertising the same in any newspaper published in Etowah county, at least three times before the day of sale." As to this notice it further provided: "It is agreed that any irregularity in giving the notice, or of making the sale, shall not in any manner affect the sale."

The deed executed to the purchaser contained a recital of the compliance with the terms of the mortgage as to the notice of sale on foreclosure. These recitals in the deed were prima facie evidence of the facts stated therein, as against the mortgagor and his privies (Naugher v. Sparks, 110 Ala. 572, 18 So. 45); and the complainants setting up the invalidity of the sale for the alleged failure to advertise the sale according to the requirements of the mortgage assumed the burden of overcoming this prima facie case of the sufficiency of the advertisement.

The chancellor in a well-considered opinion held, "that the advertisement of the mortgage sale appeared regularly and consecutively for three weeks in the Attalla Herald (a weekly newspaper published in the county of Etowah), in accordance with the provisions...

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6 cases
  • Veitch v. Woodward Iron Co.
    • United States
    • Supreme Court of Alabama
    • May 10, 1917
    ...... Sparks, 110 Ala. 572, 18 So. 45; Smith v. Steiner, 172 Ala. 79, 55 So. 606; Jackson v. Tribble, 156 Ala. 480, 47 So. 310; Johnson v. Wood, 125 Ala. 330, 28 So. 454; Williamson v. Mayer. Bros., 117 Ala. 253, 23 So. 3; Harton v. Little, 176 Ala. 267, 57 So. 851. . . ......
  • Ivy v. Hood
    • United States
    • Supreme Court of Alabama
    • June 20, 1918
    ...... 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 ... 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. . . ......
  • Miller v. Faust
    • United States
    • Supreme Court of Alabama
    • June 29, 1946
    ...... Naugher v. Sparks, 110 Ala. 572, 18 So. 45;. Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3;. Johnson et al. v. Wood et al., 125 Ala. 330, 28 So. 454, 456; Clark v. Johnson et al., 155 Ala. 648, 47. So. 82; Jackson et al. v. Tribble, 156 Ala. 480, ......
  • Drake v. Rhodes
    • United States
    • Supreme Court of Alabama
    • June 4, 1908
    ...in the point. 27 Cyc. 1467 (d), 1468, and cases cited in note 25 to the text; Weber v. Fowler, 11 How. Prac. (N. Y.) 458; Johnson v. Wood, 125 Ala. 334, 28 So. 454; Colgan v. McNamara, 16 R.I. 554, 18 A. White v. McClellan, 62 Md. 347. It is next insisted that the notice of sale is void, in......
  • Request a trial to view additional results

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