Kelly v. Carmichael

• Decision Date: 05 June 1930
• Docket Number: 6 Div. 605.
• Citation: 221 Ala. 371,129 So. 81
• Parties: KELLY v. CARMICHAEL ET AL.
• Court: Alabama Supreme Court

129 So. 81

221 Ala. 371

KELLY v. CARMICHAEL ET AL.

6 Div. 605.

Supreme Court of Alabama

June 5, 1930

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

Bill by Leona Kelly against W. M. Carmichael and others to set aside a mortgage foreclosure, etc. From the decree, complainant appeals.

Reversed and remanded.

W. H Smith, of Birmingham, for appellant.

Howze &amp Brown, of Birmingham, for appellees.

FOSTER J.

This is an appeal from a final decree in equity. The nature of the case is shown on an appeal from a decree sustaining demurrer to the bill as reported in 217 Ala. 534, 117 So. 67.

After a remandment, the bill was amended so as to eliminate that feature of its which sought in the alternative an exercise of the statutory right of redemption, seemingly recognizing a want of such right conformably to the opinion on that appeal. After the court had overruled demurrer to the bill as thus amended, respondent filed an answer denying those allegations upon which the complainant relief to found relief to the extent of vacating the foreclosure sale for irregularities. But respondent inserted the following clause at the conclusion of the answer, to wit:

"Defendant says that as evidence of good faith, and in order to enable complainant to accomplish the purpose for which this bill was originally filed, to-wit, the redemption of said property, he is willing for complainant to redeem the same from said foreclosure upon paying him the amount required by the laws of Alabama for redemption of land sold under foreclosure of mortgages, and offers to submit to this honorable court the right to fix such time as it considers reasonable to permit complainant to redeem."

Respondent also gave notice of a motion to set down the cause for hearing. Before the same came on for hearing on such motion, complainant propounded interrogatories to respondent, and also moved to strike from the answer that portion which we have quoted. On the same day respondent moved for a reference to ascertain the amount necessary to redeem from the mortgage foreclosure. A few days later the several motions were argued and submitted and taken under advisement. Some three weeks afterwards the court entered a decree reciting that the cause coming on to be heard was submitted for decree upon the bill and answer, and referred to that feature of the answer quoted above, and thereupon ordered a reference to ascertain (1) whether respondent was owner of the notes and mortgages at the time of foreclosure; and (2) "the amount justly due the respondent Carmichael on said notes and mortgages to the date of the filing of his report, including what would be a reasonable fee for the services of the solicitor for said respondent Carmichael rendered in connection with the collection of said notes and mortgages, and in ascertaining said amount due under said notes and mortgages the register shall calculate interest at the rate of eight per cent. per annum." Upon a reference, the register reported (1) that respondent was such owner of the notes and mortgages; and (2) "the amount justly due the respondent Carmichael on said notes and mortgages to the date hereof, including principal, interest and taxes is $30,888.21 and that a reasonable fee for the services of the solicitor for said respondent Carmichael rendered in connection with the collection of said notes and mortgages is $3,088.00, making a total of $33,976.21."

The evidence was reported, and the register attached a statement of the account showing how the amount was ascertained. The account was of the mortgage debts, as though there had been no foreclosure. It took no account of the foreclosure, but only found the principal of the mortgage debts with interest at 8 per cent. per annum, and taxes paid by respondent, and interest on the amount of such payments. Such figures resulted in a total of $30,888.21, and the register allowed an attorney's fee of 10 per cent. thereof.

The court overruled exceptions, rendered final decree fixing the right of redemption upon the payment within ninety days of the amount so ascertained, in default of which the cause was directed to stand dismissed at the cost of complainant.

Appellant applied to this court for a certiorari to review the decree upon the ground that it was void on its face and would not support an appeal. This court denied the writ, holding that an appeal will lie. Ex parte Leona Kelly (Ala. Sup.) 128 So. 443. This appeal was then taken by complainant in due time.

Appellant complains that the record, as we have recited it, shows that the court granted and decreed relief for which she did not pray, in accordance with a feature of the bill which had been eliminated by amendment. If the record supports that claim, it would not need argument to sustain appellant's contention. For, after complainant had been forced by demurrer to eliminate an aspect of the bill, she could not be required to accept a decree under that aspect over her protest. It may be true that the answer of respondent to which complainant took exception, when properly construed, should be so interpreted. But we have copied from the decree of reference, and the report on reference, and referred to the account made by the register, to show that the amount ascertained to be necessary to redeem is not the appropriate amount to be ascertained to exercise such statutory right, but that the same was done pursuant to the principles appropriate in the exercise of the equity of redemption, as though there had been no foreclosure. This was the relief appropriate to the bill as amended. The decree and reference undertook to ascertain the true amount of the mortgage debts-nothing more.

The amended bill did not pray for such specific relief as was justified by the facts. The facts alleged, as held on former appeal, justified the vacation of the foreclosure. Afterwards complainant's only remedy, so far as Carmichael was concerned, was to redeem in an exercise of her equity of redemption. She had no right, as prayed, to have the land sold to pay the mortgage debt until after the redemption and then to enforce contribution, as will be referred to later. Such a sale would otherwise be in effect a foreclosure at the suit of the mortgagor or his privy. It is quite true that, if there is a default on complainant's part to redeem, and the court shall thereupon decree a sale of the property in foreclosure, complainant has a right under certain circumstances, as said on former appeal, to have the property sold in the inverse order of its alienation. But, as to Carmichael, her only equity on the allegations of the bill is to declare the invalidity of the foreclosure and to redeem by paying the mortgage debt. Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105; Dozier v. Farrior, 187 Ala. 181, 65 So. 364.

To the extent, therefore, that the court decreed a redemption, there was but a granting of the appropriate relief under the amended bill, to which complainant cannot complain, unless in making such decree there was error in fixing the amount of the mortgage debt.

There was exception to the register's report in fixing the amount of the attorney's...