Mewburn v. Bass

Citation2 So. 520,82 Ala. 622
Decision Date30 June 1887
CourtSupreme Court of Alabama

Appeal from chancery court, Jefferson county.

Bill in equity for redemption of real estate sold under mortgage.

John T. Heflin and Robert H. Sterrett, for appellants.

James J. Garrett and James Weatherly contra.


The appellants, who are complainants in this cause, are the youngest two of five children left surviving him by James R Mewburn, who died intestate, December 30, 1867. When this bill was filed, July 16, 1883, Mrs. Hardman, the elder of the two complainants, had just passed her twenty-first year. Ella Mewburn was then a minor. The older three children were each more than twenty-four years old; that is, each had passed his and her twenty-first year by more than three years. William Mewburn, the oldest of the five children, had died in 1879, being then more than twenty-four years old. He left no descendants.

In October, 1865, James R. Mewburn borrowed from Richard Hudson $300, and gave his note to repay it, with interest, January 1, 1867. In September, 1866, he (Mewburn) executed a mortgage, in which his wife united, conveying to Hudson 80 acres of land, describing it, to secure the payment of said note. The mortgage contained a power of sale on default, and stipulated that, on giving certain specified notice, Hudson should sell the said lands to the highest bidder for cash, and thus pay off the note and its interest. This mortgage was recorded, after being duly acknowledged and certified as to its execution by the husband, and duly proved as to execution by the wife, and certified in form to convey the homestead.

The testimony in the record proves, without conflict, that, after giving the notice in the manner required by the mortgage'. Hudson, the mortgagee, sold said 80 acres of land to the highest bidder, at the place and within the hours prescribed in the conveyance; that 50 or more persons were present; that John A. McIntosh was the highest bidder, at $425, and the land was knocked down to him at that price. This sale was made in May, 1868. There is no ground for questioning the regularity of the proceedings up to this point. In fact, there is no conflict in the testimony on any point raised by the record. When McIntosh purchased, he did not pay the entire purchase money in cash, although he testifies that nothing was said about credit or indulgence until after he was proclaimed the highest bidder and purchaser. There was then an agreement between Hudson and himself that, as to the mortgage debt due to Hudson, he should have indulgence. He (McIntosh) paid the entire overplus above the mortgage debt in cash, and was let into immediate possession, alike by Hudson, the mortgagee, and the widow and heirs of the mortgagor. He has remained in undisturbed possession ever since, exercising acts of ownership, and claiming to hold in independent right, until he sold a part of the property to his co-defendants in this suit, only a very short time before the present bill was filed.

In September, 1869, McIntosh paid Hudson the entire amount of the mortgage debt and interest, and the latter then made a conveyance to the former. The deed, however, is by "Hudson, administrator of the estate of James A. Hawkins, deceased," and the granting clause is as follows: "All the right, title, and interest in said lands the said R. Hudson, as such adm'r, had in said lands." Neither the deed, nor anything else found in the record, informs us what interest Hudson, as administrator of James A. Hawkins, had in the lands. The mortgage conveyed the lands to Richard Hudson, and all the interest McIntosh acquired came to him as purchaser at a sale made under that mortgage. There is nothing in the record to connect the conveyance made to Hudson with the mortgage, the power of sale, nor the sale actually made by Hudson to McIntosh, but much to disconnect them. We hold that the deed made by Hudson did not divest the legal title out of him.

It is contended for appellants that, in making sale under the mortgage, Hudson made no note or memorandum in writing of the sale, sufficient to take it out of the operation of the statute of frauds. That may be conceded without affecting the result of this case. This is not a contest between Hudson and McIntosh as to whether the sale is binding. McIntosh claims under his purchase, and seeks to confirm it, while Hudson's heirs set up no claim to the land, but admit McIntosh's rightful claim. The statute of frauds is a personal defense, which can only be made by the vendor or purchaser, or those standing in their right. Gordon v. Tweedy, 71 Ala. 203, 213; Meyer v. Mitchell, 75 Ala. 475, 480; Lewis v. Wells, 50 Ala. 198; Lavender v. Hall, 60 Ala. 214. If necessary to the determination of this question, it may be that Hudson could not himself have made this defense, after receiving part or all of the purchase money, and allowing the purchaser to take and retain possession under his purchase. Code 1876, § 2121, subd. 5; Hudson v. Hilton, 67 Ala. 374.

It is objected, further, that the mortgage required a sale for cash, and Hudson allowed McIntosh considerable time within which to pay, thus making it a sale on credit. There is nothing in this objection. Mahone v. Williams, 39 Ala. 202; Cooper v. Hornsby, 71 Ala. 62; Markey v. Langley, 92 U.S. 142.

The question before us, then, is reduced to this: The lands described in the mortgage were sold, under the power therein contained, in strict compliance with the terms of the mortgage. McIntosh was the highest bidder, and became the purchaser. He took immediate possession under his purchase, paid the entire purchase money, and remained in possession, holding in independent right, until the present suit was brought, nearly 15 years afterwards.

He received no conveyance or title deed; for the paper executed was so framed as not to convey the title which the mortgage had vested in Hudson. McIntosh, then, had a perfect equity, coupled with a possession of nearly 14 years, perfected by the complete payment of the purchase money made in September, 1869. Is the present bill to redeem filed in time? The right to redeem is not always governed by the same rules. A mortgagor out of possession has the right to redeem from the mortgagee in possession, the mortgage not being foreclosed, at any time until the statutory bar gives repose to the latter. The bar in relation to real estate is 10 years. Code 1876, § 3225. There is an exception to the operation of this statutory rule when the person having the right of action was, at the time the right accrued, laboring under the disability of minority, coverture, insanity, etc. Such persons have three years after the termination of such disability to bring suit, or make entry or defense. Code 1876, § 3236; Riggs v. Fuller, 54 Ala. 141; Taylor v. Forsey, 56 Ala. 426; Tayloe v. Dugger, 66 Ala. 444. This exception, however, operates only on limitations provided for in chapter 20, tit. 1, pt. 3, of the Code of 1876, commencing with section 3223, and ending with section 3251. There is also a statutory right of redemption secured by other provisions of the Code, beginning with section 2877, which declares that "where real estate, or any interest therein, is sold under execution, or by virtue of any decree in chancery, or under any deed of trust, or power of sale in a mortgage, the same may be redeemed by the debtor from the purchaser or his vendee within two years thereafter," prescribing the mode. This is purely a statutory right, and, to reap its benefits, it must be claimed within the two years. The three-years exception in favor of minors, etc., has no application to this statutory exemption. Carlin v. Jones, 55 Ala. 624; Searcey v. Oates, 68 Ala. 111; Otis v. McMillan, 70 Ala. 47; Bailey v. Timberlake, 74 Ala. 221; Parmer v. Parmer, Id. 285; Caldwell v. Smith, 77 Ala. 157; Seals v. Pheiffer, Id. 278; Holden v. Rison, Id. 515. The steps preliminary to the right of redemption under this statute are very different from those required of mortgagors who seek to avail themselves of the long-known equitable right of redemption on paying off the incumbrance.

In addition to the foregoing well-defined classes, other redemptions have been allowed where there has been an attempt made to foreclose, but some irregularity or incompleteness, or violation of equitable principles, is complained of. These cases generally arise when the foreclosure is attempted under a power of sale conferred, and without obtaining any judicial decree authorizing a sale. All the authorities agree that when the sale is made under the power granted in the mortgage, and there is a compliance with the directions and requirements prescribed for conducting the sale, the foreclosure is as effective as if it had been accomplished through a chancery decree. A sale thus made cuts off the equitable right of redemption, and reduces the mortgagor to the mere statutory right, to be asserted within two years after the sale. Cases of redemption claimed on account of alleged irregular foreclosure are most frequently based on the charge that the mortgagee, in making the sale, has perpetrated some fraud, to the injury of the mortgagor, or that he has himself become the purchaser, either directly or indirectly, without any authority therefor conferred by the mortgage.

The case of Cooper v. Hornsby, 71 Ala 62, is, according to our understanding, precisely like the one before us in every respect save one, to be hereafter noticed. In that case, as in this, the mortgage contained a power of sale; the sale was made under it; a stranger to the mortgage purchased, and paid the purchase money, and possession was taken under the purchase, but no conveyance was made. ...

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    • April 12, 1985 the act creating the right, and is of the essence of the right.' 278 Ala. at 500, 179 So.2d at 78. Similarly, in Mewburn [v. Bass, 82 Ala. 622, 2 So. 520 (1887) ], this Court ruled that the tolling statute was inapplicable to a mortgagor's right of redemption. The two year period provide......
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