McCalley v. Finney

• Decision Date: 30 June 1916
• Docket Number: 8 Div. 898
• Citation: 198 Ala. 462,73 So. 639
• Parties: McCALLEY v. FINNEY.
• Court: Alabama Supreme Court

73 So. 639

198 Ala. 462

McCALLEY v. FINNEY.

8 Div. 898

Supreme Court of Alabama

June 30, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Law and Equity Court, Madison County; James H Ballentine, Judge.

Suit by D.C. Finney against George McCalley. From decree for complainant, respondent appeals. Reversed, rendered, and remanded.

Betts &amp Betts, of Huntsville, for appellant.

Cooper & Cooper, of Huntsville, for appellee.

GARDNER J.

Appellee and appellant--the latter a non compos mentis--owned as tenants in common real estate consisting of 348 acres situated within 3 miles of the city of Huntsville, Ala.

A bill was filed by the appellee in the court below seeking a sale of the property for division, alleging the ownership to be a two-thirds undivided interest in the complainant and the remaining one-third in respondent, George McCalley; and that the property could not be equitably divided without a sale. The guardian of McCalley was made a party respondent. Answer was filed denying the averments of the bill. This was in the year 1909.

The cause remained upon the docket, continued from term to term as by consent, until the fall of 1915, when the testimony was taken, which supported the bill and justified a decree of sale. In the meantime appellee had been in charge of the property and duly accounting for the rent. A sale of the property was decreed upon the court's ascertaining and determining that the parties were joint owners or tenants in common as claimed, and that a sale was necessary for an equitable division. The register was accordingly ordered by the decree to offer the property for cash sale at public outcry at the Huntsville courthouse, and a reference was ordered to ascertain the question of reasonable attorney's fee. During the pendency of the suit appellee had incumbered his interest in this property with two mortgages--one in the sum of $5,000, and the other, $10,000 due in 1917. The $10,000 mortgage was placed on record only a few days before the sale, and counsel for respondent testify that they were not made aware of the existence of said mortgage previous to the date set for the sale. No mention was made of these mortgages in any of the proceedings in the cause, and of course the decree was silent in this respect.

Complainant insists that he had had an agreement with the guardian of respondent to the effect that he (complainant) should bid the sum of $15,000, that this would be satisfactory to the guardian, and that a confirmation of the sale for that sum would be by him acquiesced in. On the day of the sale and at the time the property was being called by the auctioneer counsel for complainant conceived it to be his duty to state that the decree was entered in accordance with an agreement, and that he felt he should "direct attention to the existence of claims against the interest of complainant," and he accordingly read from a memorandum a statement touching the mortgages above referred to, as well as certain leases of different portions of the property made by complainant. It further appears that counsel for respondent then made an announcement to the effect that any one buying the land would buy a lawsuit. To this statement complainant's counsel replied, "By no means; Mr. Finney expects to take care of the mortgages." A prospective purchaser cried out, "Sell free from incumbrances!" to which complainant's counsel replied, "The sale will be made according to the decree; the court has full power to protect the purchaser." The auctioneer then began to cry the sale, and one Esslinger bid $1,000, whereupon complainant's counsel, for complainant, bid $15,000. The auctioneer was asked how he was selling the land--whether free from incumbrances--to which he replied, "I am going to sell according to the advertisement; for the highest dollar." There being no further bidding, the land was sold to complainant. Objections to the confirmation of the sale were filed, and affidavits submitted, by both parties, for and against the same. The court subsequently called some of these affiants before him for examination in reference to what they had to say in their affidavits, all of which is set out in the record.

It appears from the record that Esslinger, who bid $1,000, was bidding, according to his understanding, $16,000; that is, he understood that a bid of $1,000 meant subject to the mortgages of $15,000. He stated in his affidavit, and repeated in his oral examination before the court, that he went to the sale prepared to bid as much as $20,000, and was deterred therefrom by the confusion which arose in regard to the mortgages and the lack of assurance that the property was being sold free from incumbrances. As an evidence of his good faith he tendered to the court a certified check for $20,000, which he would bid at a resale of the property, free from incumbrance, if sold within a reasonable time. Another prospective bidder, a Miss McCalley, testified that she was willing to bid as high as $19,000, and would give a certified check as proof of her good faith. Offer was made to secure the cost of another sale.

The witness Esslinger testified that in his opinion $24,000 is a fair valuation of the property. He attaches to the property some speculative value for the reason that it lies near the city of Huntsville, adjoins what is called the "Merrimac Cotton Mill Village," and fronts a good public pike. It also appears that two storehouses are located on the property, one renting at $25, and the other at $10 a month. Witness Esslinger also testified that previous to the day of the sale complainant told him that he was prepared to bid $24,000 for the land.

The chancellor (judge of the law and equity court) in his opinion, copied in the record, recognized that the remarks of counsel made at the sale must have produced confusion among prospective bidders, but he entertained the view that the court was without power to decree anything in regard to the incumbrances--the mortgages; that as the mortgagees were not parties to the cause he was without power to sell "free from incumbrance," and that as the offer of these prospective bidders to bid was more conditioned upon the property's being sold "free from incumbrance" he concluded there was in fact no assurance that a resale would bring a higher price. The court directed attention to the fact that, as a matter of law, these mortgages on the interest of complainant were executed pending this suit, and so were executed subject to the hazard of the pending litigation (Stein v. McGrath, 128 Ala. 175, 30 So. 792); and therefore could not affect the rights of the purchaser. The court was further of the opinion that, as the decree of sale was a final decree, and, under the act creating it, the court had by lapse of time lost jurisdiction and control over said final decree, the court was without power to modify the same.

We are of the opinion that the court misconceived his authority in this respect.

"A decree may, nevertheless, be partly final, and partly interlocutory; final, so far as it determines all issues of law and fact, constituting the equities proper of the cause,...