Pitts v. American Freehold Land Mortg. Co. of London

• Decision Date: 30 June 1908
• Citation: 47 So. 242,157 Ala. 56
• Parties: PITTS ET AL. v. AMERICAN FREEHOLD LAND MORTGAGE CO. OF LONDON, LIMITED.
• Court: Alabama Supreme Court

47 So. 242

157 Ala. 56

PITTS ET AL. v. AMERICAN FREEHOLD LAND MORTGAGE CO. OF LONDON, LIMITED.

Supreme Court of Alabama

June 30, 1908

Appeal from Chancery Court, Shelby County; Richard D. Kelly Chancellor.

Bill by Walton C. Pitts and others against the American Freehold Land Mortgage Company of London, Limited, to set aside a foreclosure sale and to redeem. From a decree granting insufficient relief, complainants appeal. Reversed and remanded.

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

Knox Acker & Blackmon, for appellee.

McCLELLAN J.

This is the second appeal in this cause, and, since the important facts involved are set forth in the report on the former appeal, we will not repeat them. Pitts v. Mortgage Co., 123 Ala. 469, 26 So. 286. The foreclosure of the mortgage, in conformity to the power therein conferred, by a sale of the 680 acres described in the instrument, operated to effectually cut off the equity of redemption, by whomsoever held at the date of the sale, subject to the seasonably asserted right to disaffirm (and to redeem) the sale, rendered voidable by the unauthorized purchase thereat by the mortgagee.

It was formerly and correctly ruled that, as to the 480 acres, since John W. Pitts did not seasonably assert his right to disaffirm and redeem, the purchasing mortgagee took such title therein as that complainants, who had no interest in the 480 acres, had no right, against the election of the mortgagee to retain that tract, to defeat or divest. This being true, no reason has or can be given why, by the same token, the purchasing mortgagee did not take a like title in and to the life estate held by John W. Pitts, at the time of foreclosure, in the equity of redemption in the 200 acres, in which complainants, as heirs at law of their deceased mother possessed the remainder. This life estate, held by Mr. Pitts, was just as separate and separable, and just as free from control of the remaindermen in respect of disposition or conveyance by him, as the title or right possessed by Mr. Pitts in and to the 480 acres; and Mr. Pitts' failure to seasonably disaffirm and to redeem this life estate resulted, unless the mortgagee otherwise elected, in clothing it with an indefeasible title thereto against these complainants.

The complainants having the right to redeem to the extent of their remainder interest in the equity of redemption in the 200 acres, as was decided before, the respondent takes the point, and stresses it, that this right in the remaindermen cannot be appropriately exercised until the falling in of the life estate. The bill was filed August 18, 1898, and John W. Pitts died April 22, 1901, and the foreclosure sale was effected March 22, 1892. We do not think respondent's contention can be sustained. It has been long settled here that in ordinary cases 2 years from the date of sale is the limit for those sui juris to elect to disaffirm and to redeem from a voidable foreclosure sale, and that a like period fixes the limit for those under disability, from the removal thereof, to manifest their election to disaffirm and to redeem; but in no case may such disaffirmance and redemption be had after 20 years. It is obvious that if respondent's insistence is sustained the extreme and inexorable limitation of 20 years would yield to exception, and the general policy of the law to give repose to land titles would be seriously qualified. But, aside from this consideration, the nature, purpose, and effect of disaffirmance of a voidable foreclosure sale also refutes respondent's contention.

The result of a warrantable disaffirmance of such a sale is to restore the...