Marsh v. Wayland

• Decision Date: 22 August 1957
• Docket Number: 7 Div. 345
• Citation: Marsh v. Wayland, 96 So.2d 805, 266 Ala. 402 (Ala. 1957)
• Parties: J. D. MARSH v. C. G. WAYLAND et al.
• Court: Alabama Supreme Court

Page 805

96 So.2d 805

266 Ala. 402

J. D. MARSH v.C. G. WAYLAND et al.

7 Div. 345.

Supreme Court of Alabama.

Aug. 22, 1957.

W. M. Beck, Fort Payne, and Roberts & Orme, Gadsden, for appellant.

Scott, Dawson & Scott, Fort Payne, for appellees.

PER CURIAM.

This is an appeal by the respondent in a suit in equity by the mortgagors (complainants) taken from a decree filed October 30, 1956.That decree overruled demurrers to the bill of complaint and expressed the opinion that complainants were entitled to the relief prayed for, and made an order of reference to the register to ascertain certain facts necessary to the rendition of a further decree for complainants.While the decree expressed the opinion that the foreclosure of the mortgage in question by a sale made under the power after the bill was filed, was unauthorized because there was no default which justified it, there was no adjudication or decree to that effect.

A final decree of foreclosure may be rendered in two stages, each of which will support an appeal.Williams v. Knight, 233 Ala. 42, 169 So. 871.There may be a decree settling the controversy as to the rights of the parties before determining the amount necessary to be paid as a condition to an exercise of such right, which in this suit is the equity of redemption, and if not paid as directed by the court a foreclosure sale follows, or confirmation of the sale made pending the suit.The decree settling the equities and rights of the parties is a final decree, although it orders a reference to the register contemplating another final decree upon completion of such findings.But to be the basis of an appeal it must adjudge or decree on the merits of the controversy involved.Richardson v. Peagler, 111 Ala. 478, 20 So. 434;Thompson v. Maddux, 105 Ala. 326, 16 So. 885.We do not find such a decree which justifies an appeal.

The decree filed October 30, 1956, overruling demurrers to the bill is in proper form and supports an appeal if taken within thirty days.Section 755,Title 7, Code.We find that this appeal was taken within thirty days by the approval on November 28, 1956, of security for the costs of appeal.The ruling on the demurrer was assigned as error and argued by appellant in brief.Therefore, that ruling should be reviewed.

The complainants are the mortgagors of real estate to secure the purchase price of $12,000.The mortgage was executed October 1, 1953.

The third paragraph of the bill of complaint is as follows:

'That said mortgage was for the sum of Twelve Thousand Dollars ($12,000.00) and its manner of payment as set out in the mortgage was as follows: 'Due by one promissory note being of even date with this instrument and being due and payable in 120 installments of $100.00 each, the first of said installments being due November 1, 1953, and one of the remaining installments being due and payable on the 1st day of each month thereafter until all of said installments have been paid in full, the last said installment being due and payable on October 1, 1963 with interest on the several sums from date at 6% per annum, as they become due.'The complainants aver that they have paid a total of $3,997.50 upon said indebtedness secured by said mortgage when as a matter of fact only $2,785.00 was due under the terms of the mortgage but, due to the fact that the respondent has voluntarily paid the premiums on a fire insurance policy upon said property, which the complainants have offered to repay, the respondent threatens to foreclose said mortgage and has advertised the same for foreclosure on the assumption that said mortgage is in default, that they have paid to the respondent much more money than has been due upon said mortgage even though they may be charged with the insurance premiums paid by the respondent.'

The bill then alleges that the foreclosure of the mortgage would be unjust and inequitable; that forfeiture by respondent which justifies a foreclosure under the power contained in the mortgage is purely technical and respondent has suffered no damage.

The prayer for relief is that the court decree that the mortgage is not in default and that respondent be required to accept the money tendered to him as payment on the mortgage pending this litigation and that he be required to accept the money tendered on the 12th of December 1955 as the amount they owe him as insurance premiums, and that he be permanently enjoined and restrained from foreclosing said mortgage, and for general relief.It makes no offer to do equity or pay whatever may be found due and payable.

A copy of the mortgage and the foreclosure notice are made exhibits to the bill.There is no prayer for temporary injunction.But on January 21, 1956, a petition, which was sworn to, was filed seeking a temporary injunction of the respondent from taking possession of the property, and alleging that on January 16, 1956, respondent had sold the property as advertised and had become the purchaser; that he was harassing the tenants of complainants; that there was no default in the payments.The allegations of the bill and of the petition are sworn to be true.In the petition complainants agree to do equity, and allege that if the court finds they are in default and the...