Kelly v. Carmichael

• Decision Date: 29 March 1928
• Docket Number: 6 Div. 24
• Citation: 117 So. 67,217 Ala. 534
• Parties: KELLY v. CARMICHAEL.
• Court: Alabama Supreme Court

117 So. 67

217 Ala. 534

KELLY v. CARMICHAEL.

6 Div. 24

Supreme Court of Alabama

March 29, 1928

Rehearing Denied May 17, 1928

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

Bill in equity by Leona B. Kelly against W.M. Carmichael and others to set aside a mortgage foreclosure and to redeem. From a decree sustaining a demurrer to the bill, complainant appeals. Reversed and remanded.

W.H Smith, of Birmingham, for appellant.

Howze &amp Brown, of Birmingham, for appellee.

BROWN J.

This is a bill by the appellant seeking to set aside an alleged irregular foreclosure of a mortgage, and, in the alternative, for redemption under the statute. The mortgage in question is a second mortgage on the property involved, executed by the Oxmoor Heights Company, a corporation, to one Steed, to secure an alleged indebtedness of $12,000, and was transferred and assigned to the respondent, Carmichael, who foreclosed as such assignee, under the power of sale embodied in the mortgage, and became the purchaser at such sale.

The complainant asserts her right to maintain the bill as a grantee of the mortgagor under a deed conveying to her a one-fifth undivided interest in a certain part of the property, made subject to the two existing mortgages, the other being held by the Mountain Top Land Company, and, so far as appears, is outstanding and unforeclosed.

The complainant's contention that the foreclosure sale is irregular and subject to be set aside is rested on two theories: First, that long prior to the execution of the mortgage to Steed, the Oxmoor Heights Company, then the owner of the lands, laid out, surveyed, and platted all of said property, except a certain specifically described tract located in the W. 1/2 of the S.W. 1/4 of section 34, township 18, range 3 west, in lots, blocks, streets, and avenues as a subdivision, and caused a map showing such subdivision to be recorded in the office of the judge of probate of Jefferson county, and it has remained so platted without any steps being taken to revoke the survey up until the filing of the bill; that the respondent, Carmichael, with knowledge of these facts, following the description of the property in the mortgage, in abuse of the trust incident to the power of foreclosure, caused the property to be sold en masse and the price at which he purchased was inadequate to the value of the property, to complainant's detriment. Second, that after Carmichael acquired the mortgage and notes and the debt secured thereby, he parted with his interest, and at the time of such foreclosure he was not the owner of said mortgage debt. As pertinent to this aspect of the bill, complainant further claims, to state the averments in substance, that the debt secured by said mortgages is due from the respondent Allen, who received the money and property for which said mortgages were given; that Allen owns, subject to said mortgages, the other four-fifths interest in the property in which complainant is interested, and the entire interest in the other property covered by said mortgages; that said interest of Allen was conveyed by the Oxmoor Company to Allen's wife, subsequent to the grant to complainant; and that Allen has since acquired the interest of his wife, through her death. The bill prays that in the event foreclosure is set aside, that the property be subjected to the satisfaction of said mortgagor's debts in the inverse order of its alienation, so as to exhaust Allen's interest before subjecting complainant's interest.

The other aspect of the bill--that asserting the right to redeem under the statute--undertakes to relieve the complainant of the statutory duty of tendering the amount necessary to redeem as a prerequisite to the right, by averring that with the statement furnished to complainant in response to her written demand under section 10144 of the Code (1923), Carmichael denied her right to redeem.

The respondent Carmichael, appellee here, filed demurrers to the original bill, to each and every aspect thereof, to each paragraph, and to each aspect of each paragraph, separately and severally. After some minor amendments all of the grounds of the original demurrer, together with many additional grounds, were, in like form, addressed to the bill as amended, its several aspects, etc., and upon submission on these demurrers, the court sustained the demurrer "to the bill of complaint," with leave to amend. After amendments were filed to the bill as first amended, appellee refiled his demurrers to the bill in the following form:

"Now comes W.M. Carmichael and refiles to the bill as last amended the demurrers heretofore filed to the original bill and the bill as first amended."

On submission on these demurrers the court entered a decree sustaining the demurrers "to the bill of complaint as last amended," and, being "of the opinion that the bill of complaint cannot be amended so as to give it equity," dismissed the cause at the cost of complainant.

This statement as to the condition of the record, in the light of the authorities, clearly indicates that the court only considered--and we think properly so in view of the last paper filed by appellee--the demurrers to the bill as last amended as a whole. Sandlin et al. v. Anders et al., 210 Ala. 396, 98 So. 299; Oden v. King, 216 Ala. 504, 113 So. 609; Hardie-Tynes Mfg. Co. v. Cruise et al., 189 Ala. 66, 66 So. 657; Macke v. Macke, 200 Ala. 260, 76 So. 26.

It is a familiar rule of equity pleading that a demurrer to the whole bill specifying grounds of objection to one claim for relief, when more than one is asserted, is not well taken. Lea v. Iron Belt Mercantile Co., 119 Ala. 271, 24 So. 28. Therefore, if the bill presents a case for equitable relief in any one of its aspects, treating amendable defects pro hac vice, as amended, it was error to sustain the demurrer unless grounds that go to the bill as a whole were well taken. Nelson et al. v. Wadsworth et al., 171 Ala. 603, 55 So. 120; Sewell v. Walkley et al., 198 Ala. 152, 73 So. 422; Gillespie et al. v. Gibbs et al., 147 Ala. 449, 41 So. 868.

The only grounds of demurrer, appropriately assigned to the bill as a whole, as originally filed and as amended, are those that question its sufficiency for multifariousness, for want of equity, and misjoinder of parties.

Since the enactment of the statute providing that "a bill is not multifarious which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction, or relating to the same property between the same parties," this court has uniformly ruled that bills seeking to avoid alleged irregular foreclosures of mortgages made in pursuance of the power of sale, and in the alternative asserting the statutory right of redemption, are not subject to the objection of multifariousness. Dozier v. Farrior, 187 Ala. 181, 65 So. 364. And even before the enactment of the statute such was the rule. Adams v. Sayre, 70 Ala. 318.

The general demurrer for want of equity goes to the substance of the case presented, and mere defects of form which must be pointed out by specific grounds of demurrer are to be disregarded in considering the sufficiency of the bill as against the general demurrer. McDuffie et al. v. Lynchburg Shoe Co. et al., 178 Ala. 268, 59 So. 567; House and Lot v. State ex rel. Patterson et al., 204 Ala. 108, 85 So. 382, 10 A.L.R. 1589; Seeberg v. Norville, 204 Ala. 20, 85 So. 505.

The power of sale in a mortgage is not only a power complied with an interest, but it is quickened with an element of trust, "and the donee of the power is charged as a quasi trustee with the duty of fairness and good faith in its execution, to the end that the mortgagor's property may be disposed of to his pecuniary advantage in the satisfaction of his debt." Harmon v. Dothan Bank, 186 Ala. 360, 64 So. 621; Dozier v. Farrior, 187 Ala. 181, 65 So. 364; Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105; Ward et al. v. Ward et al., 108 Ala. 278, 19 So. 354; Code of 1923, § 9010.

The statute provides:

"Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured; and a conveyance of the lands sold under such power of sale to the purchaser at the sale, executed by the mortgagee, any assignee or other person entitled to the money thus secured, his agent or attorney, or the auctioneer making the sale, vests the legal title thereto in such purchaser," etc. Code of

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