Mason v. American Mortg. Co. of Edinburgh, Scotland

• Decision Date: 15 November 1899
• Citation: 124 Ala. 347,26 So. 900
• Parties: MASON v. AMERICAN MORTG. CO. OF EDINBURGH, SCOTLAND, ET AL.
• Court: Alabama Supreme Court

26 So. 900

124 Ala. 347

MASON v. AMERICAN MORTG. CO. OF EDINBURGH, SCOTLAND, ET AL.

Supreme Court of Alabama

November 15, 1899

Appeal from chancery court, Lowndes county; Jere N. Williams Chancellor.

Bill to disaffirm a foreclosure sale of land by Joseph B. Mason against the American Mortgage Company of Edinburgh, Scotland and another. From a decree dismissing the bill, plaintiff appeals. Affirmed.

C. A Whitten and E. A. Graham, for appellant.

C Bradshaw and Jas. E. Webb, for appellees.

TYSON J.

The bill in this cause was filed by the mortgagor on the 18th day of April, 1892, seeking to disaffirm a foreclosure sale of his land, made on the 12th day of January, 1888, under the power contained in a mortgage executed by him. The sole ground upon which the sale is attacked rests upon the want of authority in the mortgage to the mortgage to become the purchaser at the sale, and that Wheeler, the purchaser, acted as the agent of the mortgagee in making the purchase. It is undoubtedly the law that a purchase by a mortgagee at his own sale, under a power which does not authorize him to become the purchaser, " arms the mortgagor with the option, if expressed in a reasonable time, of affirming or disaffirming the sale," and, if he elects to disaffirm, he is entitled to redeem the lands so sold from the mortgagee. Garland v. Watson, 74 Ala. 323, and authorities therein cited; Ezzell v. Watson, 83 ala. 120, 3 So 309; Knox v. Armistead, 87 Ala. 511, 6 So. 311, 5 L. R. A. 297. The material question in this case is,-and the decision of which renders it unnecessary to consider any other question,-has the complainant elected to disaffirm the sale within a reasonable time? More than four years elapsed between the date of the sale and the filing of this bill. The force of this fact was realized by complainant's attorneys, and, in order to avoid its effect, they alleged in the bill facts as an excuse for the delay. The only allegation, however, in this respect, entitled to any consideration, is the one based upon the want of knowledge on the part of the complainant that, until a short time before the filing of the bill, Wheeler, the ostensible purchaser, was acting for the mortgagee in the purchase of the lands. Treating, for the purposes of this case, the allegation as sufficient, there is an entire absence of proof of it in the record. It is true, the complainant, in his deposition, deposed that: "Some...