Morris v. Sartain

• Decision Date: 10 March 1932
• Docket Number: 6 Div. 31.
• Citation: 224 Ala. 318,140 So. 373
• Parties: MORRIS v. SARTAIN ET AL.
• Court: Alabama Supreme Court

140 So. 373

224 Ala. 318

MORRIS v. SARTAIN ET AL.

6 Div. 31.

Supreme Court of Alabama

March 10, 1932

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Bill for injunction by I. S. Sartain and others against S. N Morris. From a decree granting temporary injunction respondent appeals.

Reversed and remanded.

Davis &amp Curtis, of Jasper, for appellant.

R. A Cooner and Pennington & Tweedy, all of Jasper, for appellees.

FOSTER J.

This appeal is taken by the respondent in a suit in equity from a decree of the court granting a temporary injunction. The order was made after notice and hearing, and the appeal is authorized by section 8307, Code. The statutory provisions for notice and hearing and an order on such hearing and an appeal from that order were new to the Code of 1907.

No appeal lies to this court from an order granting a temporary injunction except by authority of section 8307, after such hearing. Lee v. City of Birmingham, 221 Ala. 419, 128 So. 902. This court held in Jones v. Ewing, 56 Ala. 360, that the failure to require a bond as a condition to a temporary injunction was an irregularity which did not render the order void, and that the only remedy of the respondent was a motion to discharge the injunction. There was then no provision for an appeal from an order overruling a motion to discharge an injunction, and mandamus was the appropriate remedy to review it. Ex parte Sayre, 95 Ala. 288, 11 So. 378; Ex parte Fechheimer, 103 Ala. 154, 15 So. 647. Such an appeal is now provided by section 6081, Code. That is still the procedure except when the court has heard the application after notice, as provided by section 8304.

As we have said, the case of Jones v. Ewing, supra, holds that an order for an injunction without a bond is not void, but only irregular and voidable. This has been reaffirmed on rehearing in Dothan Oil Mill Co. v. Espy, 220 Ala. 605, 127 So. 178. So that the decree is such as will support an appeal. And, upon its review by us, we think it was erroneous in the failure to require a bond. Section 8293, Code. Sections 8304 to 8306 are not understood by us to mean that when that course is pursued the requirements for a bond by complainant do not apply.

The equity which appellees seek to invoke by their bill is that of an estoppel in pais. It is the general rule that, when one knowingly suffers another in his presence to purchase property to which he has a claim, and which he willfully conceals, he will be estopped to assert it against such purchaser. This is for the reason that under such circumstances he owes the duty to a purchaser ignorant of his rights to disclose them. But it is said that, if the claim consists of a mortgage recorded so as to impute notice, he owes such purchaser no duty to tell him of its existence, but he cannot be active then in misleading him, Ivy v. Hood, 202 Ala. 121, 79 So. 587; Dixie Grain Co. v. Quinn, 181 Ala. 208, 217, 61 So. 886; Porter v. Wheeler, 105 Ala. 451, 17 So. 221; Steele v. Adams, 21 Ala. 534, 541; nor be guilty of intentional fraud and deception by which the other is led to act, Steele v. Adams, supra.

It will be noticed that, in those cases, there was merely the presence at such a sale by the claimant of a recorded mortgage, when there was no public statement made in his presence that the title was clear of all claims. The mortgagee was therefore not bound to tell the purchaser of the existence of the mortgage, because such purchaser was conclusively presumed, in the absence of intentional deception, to know of its existence. In view of the record of the mortgage to appellant, he had the right to assume that appellees knew of its existence, and owed them no duty to tell them of it, provided he remains passive in connection with and does nothing to mislead them in respect to the matter, and is guilty of no intentional fraud or deception. In order that he be estopped therefore on account of his passiveness at the sale, there must be more than what would otherwise call for notice of the original existence of his mortgage. He can legally assume that they all were aware of its existence. For he could assume that they had seen its record. So that he was under no duty to tell of it. But it was a mortgage which he claimed, and not the conveyance of an indefeasible title. The mortgage was to secure...