Perry v. Seals

• Decision Date: 03 February 1914
• Docket Number: 636
• Citation: 186 Ala. 514,65 So. 151
• Parties: PERRY v. SEALS.
• Court: Alabama Supreme Court

65 So. 151

186 Ala. 514

PERRY v. SEALS.

No. 636

Supreme Court of Alabama

February 3, 1914

Rehearing Denied May 14, 1914

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Action by Robert L. Seals against Frank M. Perry. From a judgment for plaintiff, defendant appeals. Affirmed.

De Graffenried, J., dissenting.

George P. Jones, of Florence, for appellant.

Joseph H. Nathan, of Sheffield, for appellee.

McCLELLAN J.

F.M Perry (appellant) loaned appellee's testator, C.C. Seals $11,500 on five different occasions, took five promissory notes therefor and a distinct mortgage on real estate to secure the payment of each note. Default having been made by the mortgagor, the mortgages were all foreclosed at one sale under the power of sale in each provided. At the date of the sale the combined principal and interest, in the aggregate was $12,905.33. At the single foreclosure sale under the power the mortgagee was the highest bidder at his bid of $14,000--a sum in considerable excess of the mortgage debts and the accrued, aggregate interest on them. In the several notes provision was expressly made for attorney's fees for their collection. In each of the mortgages, after providing for a foreclosure sale, it was stipulated that the proceeds thereof should be devoted to the expense of "advertising, selling, and conveying" the land; there being no provision in any of the mortgage instruments for an attorney's fee for their foreclosure. The mortgages also provided that the surplus, if any, remaining after paying the mortgage debts and interest and stipulated costs and expenses, should be paid to the mortgagor.

This action--stated in the common counts for money had and received and money received for the use of the testator--would recover the difference between the sum bid by appellant and the sum composed of the aggregate of the principals and interests of the several mortgage debts and the costs.

Appellant's first insistence is that the court erred in its conclusion, appropriately invited and invoked, that the minuend should have been the amount of the principals and interests, viz., $12,905.33, according to the doctrine announced in the case of Bean v. Pearce, 151 Ala. 165, 44 So. 83, in which event there would be no excess to be claimed or recovered.

Bean v Pearce involved the sufficiency of a bill in equity to effect statutory redemption from the mortgagee who purchased the property at the foreclosure sale at a sum in excess of the amount of the mortgage debt, interest and costs; and the particular point of objection to the bill's sufficiency was that it omitted to offer to pay a sum comprehensive of the amount bid by the mortgagee at the foreclosure sale. The decision has been carefully reviewed by the full bench. The court is now of the opinion that the conclusion attained and effected in Bean v. Pearce was sound, though for the sole reason that it would have been an useless ceremony to require the...