Nichols v. Nichols

• Decision Date: 14 January 1915
• Docket Number: 908
• Citation: 192 Ala. 206,68 So. 186
• Parties: NICHOLS v. NICHOLS.
• Court: Alabama Supreme Court

68 So. 186

192 Ala. 206

NICHOLS v. NICHOLS.

No. 908

Supreme Court of Alabama

January 14, 1915

Rehearing Denied Feb. 4, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill to redeem by J.P. Nichols against Robert B. Nichols. Decree for defendant, and complainant appeals. Affirmed.

The notice of sale under the mortgage was as follows:

Mortgage Sale.

Under and by virtue of a mortgage executed to the undersigned, William A.J. McClain, by J.P. Nichols and his wife, Nancy Nichols, and recorded in Mortgage Book No. 336 page 230, in the office of the judge of probate of Jefferson county, state of Alabama, I will proceed to sell on Thursday February 4th, 1904, at Birmingham, Alabama, before the courthouse door thereof, in Jefferson county, Alabama, within the legal hours of sale, the following described property, to wit, the northwest 1/4 of section 34, township 16, range 5 west. The coal, mineral and mining privileges, however, is excepted from this sale. Also one cotton gin, one grist mill one boiler, one engine, one cotton seed mill and one cotton press. Said sale is made to satisfy said mortgage.

"W.A.J. McClain, Mortgagee.

"W.K. Smith, Attorney."

Burgin, Jenkins & Brown, of Birmingham, for appellant.

W.K. Terry, of Birmingham, for appellee.

McCLELLAN J.

The appellant was the complainant, and the appellee was the respondent, in the court below. The object of the bill was to effect the redemption of real estate, under the equity to that end residing in the mortgagor (complainant), if there had been no foreclosure under the power of sale provided in the mortgage. The respondent's right to or title in the real estate is asserted as of his purchase from McClain, the mortgagee, who is further asserted to have bought the property at foreclosure sale under the unquestioned power to the end provided in the mortgage. The respondent prevailed in the decree rendered.

There is some argument in the brief for appellant that seems to be grounded in the notion that the mortgage under view did not contain a sufficient description of the particular land it purported to incumber in that the county and state in which it is situate was not given in the mortgage. In the second paragraph of complainant's bill it is averred that the mortgage in question was executed by complainant and his wife, and the exhibited copy shows its due execution, and that it "covered the following described lands situated in Jefferson county, Alabama," then giving the quarter call according to the government numbers appearing in the mortgage. Additional to the theory of the existence of a valid mortgage necessarily resultant from the complainant's purpose and effort to redeem, the indicated allegations of the bill entirely preclude complainant from asserting anything inconsistent with so clear a statement, in his pleading, of the validity of the mortgage and of the sufficiency of the description of the land in respect of its location with reference to state and county. 16 Cyc. p. 238; 2 Ency. L. & P. pp. 173, 174; Dickson v. Chorn, 6 Iowa, 19, 71 Am.Dec. 382, 387; Winn v. Strickland, 34 Fla. 610, 16 So. 606, 612, second column. The like principle underlies the rulings of this court in McGehee v. Lehman, Durr & Co., 65 Ala. 316; Gresham v. Ware, 79 Ala. 192; Toney v. Moore, 4 Stew. & P. 355.

The only question really litigable in this cause is whether the effort of the mortgagee to foreclose this mortgage, under and according to the power of sale to that end, was abortive, and hence did not operate as a foreclosure sale of the property "after giving 30 days' notice, by advertising. ***" There is no provision in the mortgage defining or prescribing the method whereby the required advertisement of the sale might be effected. To advertise a sale does not necessarily mean public notice by publication in a newspaper. It comprehends, as well as that method of notice, public notice by hand bills, placards, or other written public notices. See Bouvier; Webster's Dict.; 1 Words and Phrases, p. 236; Century Dict.; Carter v. State, 81 Ark. 37, 98 S.W. 704. However, the method of advertisement observed by the mortgagee in this mortgage was by publication in a Bessemer newspaper, and that for a period of 30 days before the day fixed therein for the sale under the power of sale, viz., February 4, 1904. The report of the appeal will contain the notice of sale. It appeared in the Bessemer newspaper at the weekly intervals indicated by these dates: On January 1st, 8th, 15th, 22d, 29th. The sale was not had on the 4th day of February, 1904. On that day and date the sale was postponed to the 15th day of February, 1904, when a sale was made. Now, the issue of the newspaper of the 5th day of February, 1904, carried the same notice that had theretofore appeared in the newspaper; but there was no addition thereto or thereon of any statement indicating the postponement of the sale or the date to which it had been postponed.

There is no express contention that any prejudice resulted to the rights or interest of the mortgagor because of the stated postponement of the sale or because of the sale on that date. It is contended that, since the sale was not had on the date fixed in the publication mentioned, it was essential that a new 30-day publication should be effected before a valid sale could be had under the terms of the power of sale conferred by the mortgage. This contention may be otherwise thus stated: That the mortgagee had no power under the terms of the mortgage to make a sale without a 30-day advertisement thereof, thus negativing any power to postpone or continue the sale to another date with the effect of availing of the advertisement already made for the requisite period for a sale on the day fixed in such advertisement. The single question in this connection involves an interpretation of the terms and legal effect of the power conferred by the mortgage.

The court below followed and gave effect to the correct ruling thus stated in Richards v. Holmes, 18 How. 143, at page 147 (15 L.Ed. 304):

"There is no reason to suspect the least unfairness on the part of the trustee or any one concerned. His conduct seems to have been dictated solely by an honest desire to obtain the best price for the property. Nor is there any ground for believing that either of these postponements prejudiced the interest of the complainants. They stand upon the objection that though the trustee might have sold on the first day, of which 30 days' notice was given, he could not on that day adjourn the sale. But we consider that a power to a trustee to sell at public auction, after a certain public notice of the time and place of sale, includes the power regularly to adjourn the sale to a different time and place, when, in his discretion, fairly exercised, it shall seem to him necessary to do so in order to obtain the fair auction price for the property. If he has not this power, the elements or many unexpected occurrences may prevent an attendance of bidders, and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be

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