Pitts v. American Freehold Land-Mortgage Co.

• Decision Date: 31 May 1899
• Citation: 123 Ala. 469,26 So. 286
• Parties: PITTS ET AL. v. AMERICAN FREEHOLD LAND-MORTGAGE CO. ET AL.
• Court: Alabama Supreme Court

26 So. 286

123 Ala. 469

PITTS ET AL. v. AMERICAN FREEHOLD LAND-MORTGAGE CO. ET AL.

Supreme Court of Alabama

May 31, 1899

Appeal from chancery court, Shelby county; J. R. Dowdell Chancellor.

Bill by Walton C. Pitts and others, by next friend, against the American Freehold Land-Mortgage Company and others, to set aside a foreclosure and to redeem. From a decree sustaining a demurrer to the bill, complainants appeal. Affirmed.

James E. Webb and W. F. Thetford, Jr., for appellants.

John B Knox and Sydney J. Bowie, for appellees.

TYSON J.

The appeal in this cause is prosecuted by the complainants, who are minors, from a decree sustaining a demurrer to their bill of complaint. The facts alleged upon which they predicate their right to the relief sought by the bill may be briefly stated as follows The father and mother of the complainants executed a mortgage to the respondent mortgage company in the year 1886 upon 680 acres of land belonging to the father. About one year after the execution of this mortgage the father of complainants executed to his wife, their mother, a warranty deed, for valuable consideration, to 200 acres of the land conveyed by their mortgage to respondent. There was a default in the payment of the debt secured by the mortgage and in 1892 after the death of the complainants' mother, the mortgage was foreclosed under the power contained in it, and the respondent mortgage company became the purchaser of the entire tract, without authority to do so under the terms of the mortgage, and went into the possession of the lands. The relief sought by the bill upon these facts is to set aside the foreclosure sale of the lands as a whole, including the 200 acres conveyed to complainants' mother, and also to redeem them, and to hold the mortgage company liable as mortgagee in possession for the rents collected by it upon the entire 680 acres, to be applied upon the mortgage debt, and, "so redeeming, to have said mortgage assigned and enforced, for their protection and benefit, upon the four hundred and eighty acres by a sale thereof, under a decree of this court, to the exoneration of their said two hundred acres." There were many grounds of demurrer assigned to the bill, and those sustained by the chancellor practically go to the rights of the complainants to have the sale set aside as to the whole tract and their right to redeem the 480 acres. Some of the grounds of the demurrer assigned recognize the right of the complainants to redeem the 200 acres which were conveyed by the deed to their mother. Independent of the recognition by the mortgage company of this right in the complainants, it would seem there is no question of their having it. 2 Jones, Mortg. (5th Ed.) § 1055 et seq.; Howser v. Cruikshank (Ala.) 25 So. 206, and authorities therein cited. It is contended by complainants, however, that, in order to secure to themselves the benefit of the equity of redemption, they will be required to pay the entire mortgage debt to the mortgage company; that there can be no apportionment of it so as to relieve the 200 acres in which they still have an equity of redemption from the lien of the mortgage by paying their aliquot part. As to the correctness of this contention we express no opinion, as it is not necessary to a decision of the question here involved. The authorities on this subject are not altogether uniform (2 Jones, Mortg. [5th Ed.] § 1074, and note on page 34), and the question has never been decided in this state that we are aware of. The cases insisted upon as supporting appellants' contention rest upon a different principle. The complainants confessedly having the right to redeem the 200 acres, is it true that the sale and purchase by the mortgage company of the 480 acres more than five years before the filing of the bill, and which has ripened into an indefeasible title as against the mortgagor, may be avoided by them? Unless this question can be answered affirmatively, the decree of the chancellor must be affirmed. The complainants derived their equity of redemption to the 200 acres by inheritance from their mother, being her only heirs at law. They never owned any property interest in the 480 acres. The equity of redemption as to this portion of the tract conveyed by the mortgage, after the death of the wife, resided exclusively in their father, who is still living, and one of the respondents to their bill; unlike, in this respect, to the case where there was a voidable foreclosure, and the heirs at law of the mortgagor, after his death, disaffirmed the sale. In the latter case the equity of redemption in all the realty conveyed by the mortgage descended to his heirs at law. Mr. Jones says: "To entitle one to redeem he must have an interest in the land, derived through the mortgagor, so that, in effect, his interest constitutes a part of the mortgagor's equity of redemption." 2 Jones, Mortg. § 1055a. And the mortgagee in possession under a voidable foreclosure sale after the mortgagor's death is regarded as holding under the mortgage in privity of title with his heirs at law. Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623; Mortgage Co. v. Sewell, 92 Ala. 163, 9 So. 143. No contract in the present case can be said in any sense to exist between the complainants and the mortgage company; and their right to redeem the 200 acres rests solely and exclusively upon their inheritance of the equity of redemption from their mother, who acquired this property...