Naugher v. Sparks

• Decision Date: 25 April 1895
• Citation: 18 So. 45,110 Ala. 572
• Parties: NAUGHER ET AL. v. SPARKS.
• Court: Alabama Supreme Court

18 So. 45

110 Ala. 572

NAUGHER ET AL. v. SPARKS.

Supreme Court of Alabama

April 25, 1895

Appeal from chancery court, Fayette county; Thomas Cobbs Chancellor.

Bill by Carroll Sparks against J. W. Naugher and another to redeem land from a mortgage. A decree was rendered for complainant and defendants appeal. Reversed.

The complainant, in his bill, alleges a full payment of the mortgage debt, and a large amount in excess thereof, by way of the rents, which had accrued and had been received by the respondents. In his bill, the complainant offers to do equity by the payment of any amount that may be ascertained to be due, in the event there had not already been a full payment of the mortgage debt. In their answer, the respondents denied the full payment of the mortgage debt; and set up a foreclosure of the mortgage, under the power therein contained, on April 28th, 1884, for a balance due at that time of $454.25 on said mortgage debt; and attached, as an exhibit to their answer, the deed executed by the auctioneer who sold the land at said sale,-the deed bearing date of May 3, 1884. The other facts of the case are sufficiently stated in the opinion. Upon the final hearing of the cause, on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for, and ordered a reference to the register to ascertain the amount that was due on said mortgage debt.

Jones &amp Mayfield and J. B. Sanford, for appellants.

A. B McEachin, W. B. Appling, J. H. McGuire, and D. Collier, for appellee.

COLEMAN J.

The mortgagor, Sparks, filed the present bill to redeem. Ten years is the limitation within which a mortgagor may be let in to redeem. The averments of the bill and the proof show that he had been out of possession 9 years and 10 months. The bar had not been perfected. The defense was that the mortgage was regularly foreclosed; a purchase at the foreclosure sale; and deed of conveyance, and possession and title thereunder. Whether there was a foreclosure at all, and, if so, whether a valid foreclosure, are the controverted facts of the case. The chancellor granted relief to complainants, citing in his opinion only the case of Wood v. Lake, 62 Ala. 489.

The mortgage contains the following provision: "And it is hereby agreed, by and between the parties to this deed of mortgage, that, should said lands be sold, as herein provided for, the said Joseph W. Naugher may bid at said sale; and, if he should be the highest and best bidder therefor, that said lands may be knocked off to him, and the auctioneer making the sale shall convey the same to him by proper deed of conveyance." The deed of conveyance, dated and duly acknowledged before the probate judge of Fayette county, on the 3d of May, 1884, purports to be in execution of the authority conferred in the mortgage, and recites that the sale was made "after advertising the time and place, and strictly in accordance with the terms of the mortgage," etc., and acting as "auctioneer under the appointment of the deed," etc. The question of primary importance is what weight shall be given to the recitals of the deed that the provisions of the mortgage were complied with as to notice of time when, place where, and terms of sale? The bill to redeem makes no reference to a foreclosure sale. The answer set up the foreclosure sale and deed, as matter of defense. The appellee contends, and we presume that was the conclusion of the learned chancellor, that, under the influence of Wood v. Lake, these recitals are, as to the mortgagor, res inter alios acta, and must not be given any consideration. There are some expressions in the opinion which seem to justify the contention. An examination of the case, however, will show that no importance was attached to these statements in reaching a decision. The question of law decided, upon which the case was determined, was that a judgment recovered...