Macke v. Scaccia
| Decision Date | 05 March 1931 |
| Docket Number | 6 Div. 765. |
| Parties | MACKE v. SCACCIA. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Bill to enjoin foreclosure and redeem from mortgage by Fred G. Macke against Antonino Scaccia, alias Tony Scotch. From a decree denying temporary injunction, complainant appeals.
Reversed and remanded.
Victor H. Smith, of Birmingham, for appellant.
W. B Harrison, of Birmingham, for appellee.
The bill, filed by the purchaser of lands subject to an outstanding mortgage and standing in the position of the mortgagor, to enjoin a threatened foreclosure under power of sale, and to redeem the lands from the mortgage.
The present appeal is from a decree denying a temporary injunction after hearing on bill, answer, and supporting affidavits.
A mortgagor may proceed in equity to enforce his equity of redemption. No tender or offer to pay before suit brought need be averred or proven. No controversy or occasion for an accounting as to the amount of the mortgage debt need be shown. Submission to the jurisdiction of the court with offer to redeem by payment of the debt as decreed gives equity to the bill.
If no dispute appears in the bill or answer to be litigated, the court may proceed at once to decree the conditions of redemption and further decree that upon noncompliance, the equity of redemption stand foreclosed.
In such case, if there was no tender and refusal of payment, or other act of the mortgagee rendering it necessary to resort to equity, and he interposes no barrier to relief, the costs should go against the complainant. Hudson v. Kelly, 70 Ala. 393.
The filing of such bill does not ipso facto suspend the foreclosure under power of sale. But it brings the subject-matter and the parties within the lis pendens of the suit, and, if redemption is decreed and effected, the foreclosure under the power, as to them, stands for naught becomes a useless expense upon some one, and maybe draws third persons into the proceedings.
As to bona fide purchasers the lis pendens is inoperative in the absence of the statutory notice. Marsh v. Elba Bank & Trust Co., 221 Ala. 683, 130 So. 323.
It must now be regarded as the settled law in this state that pending the bill to redeem the mortgagee cannot, by foreclosure under the power, impair the equity of redemption.
The status quo as to possession is not to be disturbed by such proceeding or by separate action at law. The entire matter is drawn within the jurisdiction of the equity court, and if, by reason of insufficient security, there is need to intercept the rents and profits pending the suit, a receiver may be appointed by that court on proper application. Ezzell v. First National Bank, 218 Ala. 462, 119 So. 2; Boyd v. Dent, 216 Ala. 171, 113 So. 11; Brown v. Bell, 206 Ala. 182, 89 So. 659; Lampkin v. Stout, 199 Ala. 101, 74 So. 239; Lampkin v. Irwin, 202 Ala. 14, 79 So. 300; Thompson v. Atchley, 201 Ala. 398, 78 So. 196; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Burns v. Mtg. Bond Co. of N. Y., 199 Ala. 77, 73 So. 987; Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963; Whitley v. Dumham Lumber Co., 89 Ala. 493, 7 So. 810.
It follows from these principles that a foreclosure under the power pending such suit can serve no good purpose. An injunction to prevent same is merely ancillary; has the effect of preserving the status quo.
The case is different from those wherein the equity of the bill itself is injunctive relief against the abuse of a power of sale.
A proceeding to foreclose under the power concedes, and proceeds on the assumption, that an equity of redemption does exist, and foreclosure is to divest it.
A proceeding in court to effectuate such equity, and a simultaneous proceeding out of court to cut it off, are incongruous.
On full reflection we hold that on the filing of such bill containing equity, whether it presents a litigable controversy or not as to the amount to be paid on redemption, if complainant makes application therefor and is willing to give an injunction bond, the better practice is to issue same.
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Federal Land Bank of New Orleans v. Ozark City Bank, 4 Div. 591.
...conveyance did not affect the right in the land and attached merely to the debtor's share of the proceeds of sale. In Macke v. Scaccia, 222 Ala. 359, 132 So. 880, announcement was that as to bona fide purchaser at foreclosure during the pendency of the mortgagor's suit to enforce equity of ......
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... ... Code 1923, § 6878; its purpose being notice to bona fide ... purchasers from purchaser at foreclosure sale. Macke v ... Scaccia, 222 Ala. 359, 132 So. 880. The manifest purpose ... of the statute was to provide a means whereby one desiring to ... purchase ... ...
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