Lovelace v. Hutchinson

• Decision Date: 26 April 1895
• Citation: 106 Ala. 417,17 So. 623
• Parties: LOVELACE ET AL. v. HUTCHINSON ET AL.
• Court: Alabama Supreme Court

17 So. 623

106 Ala. 417

LOVELACE ET AL. v. HUTCHINSON ET AL.

Supreme Court of Alabama

April 26, 1895

Appeal from chancery court, Hale county; W. H. Tayloe, Chancellor.

Bill in chancery by Martha Hutchinson and others against J. B Lovelace and another to redeem from a foreclosure sale. From a decree for complainants, defendants appeal. Reversed.

The bill in this case was filed on October 26, 1891, by the appellees, Thomas Hill and Mary Gayles by their next friend Herbert Hill, and Martha Hutchinson. The bill, as amended averred the following facts: That James Junkins, being possessed of certain property, to wit, 173 acres of land, on January 9, 1874, executed a mortgage on said property to Crenshaw, Lovelace & Co.; that on May 20, 1874, said James Junkins died, leaving a last will and testament. By his will James Junkins devised a life estate in 80 acres of the lands conveyed in the mortgage to Crenshaw, Lovelace & Co. (which lands are the subject of the present controversy) to his brother, John Junkins, with a remainder in fee to Herbert Martha, Sophia, Margaret and Mary Hill; and all the balance of said lands he devised to the above-named Hills. Mary Hill married a man by the name of Gayles, and Martha Hill married one Hutchinson. Margaret and Sophia Hill died during their infancy, leaving no debts and leaving complainants as their heirs. After the death of James Junkins, Crenshaw, Lovelace & Co. foreclosed the mortgage executed to them by said Junkins by a sale under the power contained therein on January 15, 1875, at which sale the mortgagees, Crenshaw, Lovelace & Co. became the purchasers, and immediately took possession of the lands, and converted them to their own use. Crenshaw, Lovelace & Co. kept possession of said lands until the year 1876, when the firm was dissolved by Crenshaw retiring therefrom, and a new firm of J. B. & C. W. Lovelace succeeding to all the rights of the old firm in this property. The firm of J. B. & C. W. Lovelace held possession of these lands, received the rents and profits therefrom, until 1884, when they again sold the lands under the mortgage which had been executed by James Junkins to Crenshaw, Lovelace & Co. in 1874, and at said sale one George Hellen and Spencer Tabb became the purchasers for a recited consideration; but, in fact, no money was ever paid on such purchase, and the bill avers the conveyance was void as to the complainants. On November 25, 1890, George Hellen and Spencer Tabb executed a deed conveying the same lands to D. J. Castleman, upon a recited consideration of a debt due from the grantors to said Castleman, and this deed complainants averred was fraudulent and void as to them. Hellen and Tabb paid rent on the lands to J. B. & C. W. Lovelace from the time they went into possession thereof until they sold the lands to Castleman. The bill then avers that all of these facts took place while the complainants were minors, having no guardian, and that they were informed of them only a short time before they filed the bill. It was further averred in said bill that upon a proper accounting being made, it would be ascertained that the mortgage debt originally due to Crenshaw, Lovelace & Co. had been paid from the rents and profits received by them while in possession of the lands; and it then avers, in the event the debt had not been paid, that the complainants would pay the amount found to be due. It was stated in the bill that Herbert Hill does not join in the suit, it being admitted by him that his rights had been barred by the statute of limitations. The complainants prayed to have an accounting stated between them and J. B. & C. W. Lovelace; that they be allowed to redeem said property by the payment of the amount found to be due to the mortgagees, if any debt was due them; and that the conveyance from J. B. & C. W. Lovelace to Hellen and Tabb, and from Hellen and Tabb to Castleman, be set aside as void as to the complainants. The respondents demurred to the bill as amended, on the following grounds: (1) It is shown that John Junkins was one of the devisees under the will, and that having died, neither his administrator nor heirs at law are made parties thereto. (2) The bill shows that the complainants are not entitled to an accounting to that part of the land devised to John Junkins, during his lifetime. (3) The bill shows that the sale to Hellen and Tabb was made in compliance with the terms of the original mortgage, and fails to show that Hellen and Tabb had any notice of any alleged previous sale under the power contained in the mortgage. (4) The bill shows that by the sale to Hellen and Tabb, and by them to Castleman, the title to said lands had passed out of the defendants, Lovelace, and that the complainants are, therefore, not entitled to any accounting of the rents and profits of said lands. (5) The complainants' demand is stale and barred by the statute of limitations, they having failed for a reasonable time to institute proceedings seeking the relief now prayed for. Upon the submission of the cause upon the demurrers, the chancellor overruled the demurrers. His decree in this behalf is appealed from, and the same is here assigned as error.

J. H. Stewart and Thos. E. Knight, for appellants.

W. W. Lavender and Seay & De Graffenried, for appellees.

HARALSON J.

1. The bill shows that James Junkins, the mortgagor, died testate in the year 1874, having previously, on the 9th of January 1874, executed and delivered a mortgage on his lands and personal property to Crenshaw, Lovelace & Co.; and after his death, the mortgagees having advertised the property for sale, sold it under their mortgage, on the 15th January, 1875, and themselves became the purchasers thereof, and immediately took and retained possession of it, receiving rents and profits therefrom; that Crenshaw retired from said firm, and J. B. & C. W. Lovelace succeeded to all his rights and interests in said partnership, and that in the year 1884, the said J. B. & C. W. Lovelace conveyed the lands to George Hellen and Spencer Tabb, for a recited consideration of $800. A copy of the deed is attached to the bill, and recites a sale made, as for the foreclosure of said mortgage. The sale made by the mortgagees in January, 1875, was a full execution of the power of foreclosure of the mortgage, and the mortgagees could not again sell under the same power; so that the sale to Hellen and Tabb in 1884, derived no force as having been made under said mortgage, and was no...