Kelley Realty Co. v. McDavid

• Decision Date: 12 June 1924
• Docket Number: 6 Div. 7.
• Citation: 211 Ala. 575,100 So. 872
• Parties: KELLEY REALTY CO. v. MCDAVID.
• Court: Alabama Supreme Court

100 So. 872

211 Ala. 575

KELLEY REALTY CO. v. MCDAVID.

6 Div. 7.

Supreme Court of Alabama

June 12, 1924

Rehearing Denied June 30, 1924.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by the Kelley Realty Company against E. R. McDavid. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Roy McCullough, of Birmingham, for appellant.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

SOMERVILLE J.

As we interpret the allegations of the bill of complaint, the defect in the advertisement of the foreclosure sale consists merely in the omission of one of the four weekly newspaper insertions required by the mortgage to be successively made. If material to the determination of the question presented we would presume that the omitted insertion was other than the first, and that the notice was begun a full thirty days before the sale. And, if material, we would presume also that the omission complained of was innocently made, and that it did not injuriously affect the market for the land, nor the price for which it was sold.

Complainant's insistence is that the defect in question rendered the foreclosure sale absolutely void, and that he had, therefore, ten years from the sale within which to assert his equity of redemption, as in ordinary cases; and that, even though the defective advertisement rendered the sale voidable only, yet, by analogy to the limitation of ten years at law, his right to avoid the sale would not be barred by laches until the lapse of that period.

In Wood v. Lake, 62 Ala. 489, 491, quoting from Sugden on Powers, 212, it was said:

"The general rule is, that one, not the owner [italics supplied], who sells another's lands, must comply substantially with all the directions, stipulations and conditions *** or the title will not pass. *** 'If notice is required to be given, the execution of the power will be void if notice be not given accordingly."'

There was no competent evidence to show that any notice of the sale was given, and Stone, J., observed:

"There was no proof in the present case [ejectment] that the notice required by the mortgage was given. Whether this is fatal to plaintiff's suit, or whether this is a mere informality in the *** mortgage which the parties to it may waive, and which strangers will not be heard to object to, we need not decide."

The instrument there involved was a deed of trust, and the trustee was a third person.

In Robinson v. Cahalan, 91 Ala. 479, 8 So. 415, the court apparently held that, in the absence of proof of advertisement, the deed to a purchaser at foreclosure sale would not be sufficient to show title; the action being in ejectment.

In Speakman v. Vest, 166 Ala. 235, 240, 51 So. 980, 982, wherein a chattel mortgage was involved, the court said:

"The assignment of error first insisted on is that the plaintiff took some of the mortgaged property, and sold the same under the power in the mortgage, without giving the prescribed notice of sale. If this was the case, the foreclosure would not be valid."

But, further on, the opinion quoted with approval:

"'If the property brings its full value, and the proceeds are properly applied, the sale will not be set aside for defects in the notice, as no one has been injured.' 2 Cobbey on Chattel Mortgages, § 966."

In Summerford v. Hammond, 187 Ala. 244, 65 So. 831, which was a bill to set aside a foreclosure sale, because, among other things, the sale was not advertised for the full ten days required, but only for nine days, the court said:

"The foreclosure was not absolutely void on account of any one, or of all of the irregularities. At most, the irregularities would authorize only a setting aside of the foreclosure sale, and the allowing of the mortgagor to redeem."

This statement was, it seems, a judicial dictum, as the bill was filed sixteen years after the sale, and was too late whether the sale was regarded as voidable merely, or absolutely void. It appears, therefore, that the exact question here presented has not been decided by this court.

We are convinced, however, that a distinction must be made between cases where there is no sort of compliance with the requirement of advertisement or other notice of the sale, and cases where there is actually given some notice of the nature required, sufficient to give public information of the pendency and date of the sale, though it be ever so defective or incomplete. In the latter class of cases the foreclosure sale will not be void, but voidable only to the election of the mortgagor, properly and seasonably asserted. Cornell v. Newkirk, 144 Ill. 241, 33 N.E. 37. Cases may be found to the contrary, but we prefer to follow the rule as above stated, which gives ample protection to mortgagors where the requirements of the mortgage are not strictly or substantially followed by the mortgagee in the execution of the power of sale.

If, as we hold, the foreclosure sale here in question was not void, but voidable merely, then complainant's right to avoid it and to exercise the right of equitable redemption must depend upon the timeliness of his assertion of that right.

"If a sale under a power is voidable at the election of the mortgagor for some irregularity, such as that the mortgagee purchased without authority, that there was an inadequacy in the price obtained, want of sufficient or proper notice, or the like, the mortgagor must institute proceedings for avoidance within apt and reasonable time, or his laches will bar him of relief. *** Some courts have judicially fixed two years as reasonable time in which the mortgagor must institute proceedings to avoid the mortgage sale for any irregularity therein, and have decided that a longer delay, in the absence of special and equitable circumstances, is such laches as will bar relief." 19 R. C. L. 616, § 433; 92 Am. St. Rep. 592, note.

This is the rule prevailing in this state. Ezzell v. Watson, 83 Ala. 120, 3 So. 309...