Ritter v. Moseley

• Decision Date: 30 March 1933
• Docket Number: 6 Div. 268.
• Citation: 226 Ala. 648,148 So. 143
• Parties: RITTER v. MOSELEY.
• Court: Alabama Supreme Court

148 So. 143

226 Ala. 648

RITTER v. MOSELEY.

6 Div. 268.

Supreme Court of Alabama

March 30, 1933

Rehearing Denied May 25, 1933.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action in nature of ejectment by C. D. Ritter against N.W. Embry Moseley. From a judgment for defendant, plaintiff appeals.

Affirmed.

Ritter Wynn & Carmichael and Victor H. Smith, all of Birmingham, for appellant.

Theodore J. Lamar, W. P. McCrossin, and Walter S. Smith, all of Birmingham, for appellee.

BROWN Justice.

This is a statutory action in the nature of an action of ejectment by the appellant against the appellee to recover possession of "lot 4, according to Wm. Hall's Subdivision as shown on Map Book 3, on page 40, in the office of the Probate Judge of Jefferson County, Alabama, which said Lot fronts forty-two (42) feet on the North side of Eleventh Avenue, North, and extends back of uniform width along the West side of Lawn Street one hundred forty (140) feet, situated in Jefferson County, Alabama."

On the trial the defendant pleaded the general issue, not guilty and there was a verdict and judgment for the defendant.

The plaintiff, to establish a legal title in himself, offered the following evidence:

First a mortgage embracing said lot, executed by the defendant and her husband, J. D. Moseley, to Ida B. Culpepper Greene on the 24th day of February, 1926, to secure an indebtedness of $700, evidenced by a note of the same date, due and payable two years after date. The power of sale embodied in the mortgage was in the following language: "Should default be made in the payment of any sum expended by the said Ida B. Culpepper Greene, or should said note or any part thereof, or interest thereon, remain unpaid at maturity, or should the interest of said Ida B. Culpepper Greene or her assigns in said property become endangered by reasons of the enforcement of any prior lien or incumbrance thereon, so as to endanger the debt hereby secured, then in any one of said events the whole of said indebtedness shall at once become due and payable, and this mortgage be subject to foreclosure as now provided by law in case of past due mortgages, and the said Ida B. Culpepper Greene, her agents or assigns, shall be authorized to take possession of the premises hereby conveyed, and after giving thirty days notice by publication once a week for three consecutive weeks, of the time, place, and terms of sale by publication in some newspaper published at Birmingham, Jefferson County, Alabama, in said County and State, to sell the same in front of the Court House door of said County, at public outcry, to the highest bidder for cash, and apply the proceeds of said sale, first, to the expense of advertising, selling and conveying, including a reasonable attorney's fee; and second, to the payment of any amounts that may have been expended or that may then be necessary to expend, in paying insurance, taxes or other incumbrances, with interest thereon; and third, to the payment of said note in full, whether the same shall or shall not have fully matured at the date of said sale; but no interest shall be collected beyond the day of sale; and fourth, the balance, if any, to be turned over to the said N.W. Embry Moseley and J. D. Moseley, and ' tis further agreed that said Ida B. Culpepper Greene, her agents or assigns may bid at said sale and purchase said property, if the highest bidder therefor." (Italics supplied.)

Second, the assignment of the note and mortgage and the debt secured thereby in the following words: "For value received, I, the undersigned, Ida B. Culpepper Greene, do hereby grant, bargain, sell and convey and transfer to Ritter, Wynn & Carmichael the within mortgage, the debts secured thereby and the note evidencing said debt." (Italics supplied.) This transfer purports to have been executed on September 27, 1927, and was signed by the mortgagee and her signature witnessed by two witnesses.

Third, a deed purporting on its face to be executed to correct the description of a deed theretofore executed by the mortgagors, N.W. Embry Moseley and J. D. Moseley, on the 25th of May, 1928, "by I. D. Hobbs, their attorney-in-fact," to the plaintiff, C. D. Ritter, said deed, after reciting the steps taken to foreclose, the sale "by I. D. Hobbs as auctioneer and agent for the transferees or assigns," on May 18, 1928, the purchase by C. D. Ritter, the highest bidder, at $860 and its payment, etc., and the execution of the former deed, concludes: "Now, therefore, in consideration of the premises, we, the said N.W. Embry Moseley and J. D. Moseley, by their attorney-in-fact, said I. D. Hobbs, do hereby grant, bargain, sell and convey unto the said C. D. Ritter the following described real estate [describing the lot in suit]. To have and to hold, to the said C. D. Ritter, his heirs and assigns forever. Witness our hands and seals, this the 17th day of April, 1929. (Signed) N.W. Embry Moseley, (L. S.), J. D. Moseley, (L. S.), By J. D. Hobbs, Their Attorney-in-fact."

The certificate of acknowledgment is to the effect that "I. D. Hobbs, whose name is signed to the foregoing conveyance as attorney-in-fact for N.W. Embry Moseley and J. D. Moseley," as such attorney in fact for N.W. Embry Moseley and J. D. Moseley, and in "their name and behalf, executed the said conveyance voluntarily on the day the same bears date."

Fourth, the notice of foreclosure published "in the Weekly Call, a newspaper published at Birmingham, Alabama," appearing in the issues of April 14, April 21, and April 28, 1929, advertising the property for sale May 17, 1928, at the door of the courthouse in Jefferson county, Ala., by "Ritter, Wynn & Carmichael, transferors of said mortgage."

The plaintiff testified that he was the senior member of the firm of Ritter, Wynn & Carmichael; that he knew the handwriting of Ida B. Culpepper Greene, and that the signature on the back of the note and to the transfer was her signature; that he received the mortgage with the "purported assignment attached to it, as is now attached, about the last of September, or the first of October, 1927, and has had it ever since." The plaintiff also proved the rental value of the property as from $15 to $20 per month.

The plaintiff, on cross-examination, testified that the note and mortgage were not delivered to the firm of Ritter, Wynn & Carmichael for collection, but defendant offered in evidence the letter accompanying the delivery of the note and mortgage and the transfer, admitted to be such by the plaintiff, which concluded: "In accordance with suggestion in your present letter, I am enclosing mortgage deed and note described in my letter of August 27, 1927, together with assignment and indorsement. Please collect interest which was due August 24, 1926, and hold papers for collection of principal and interest due February 24, 1928." This letter was signed by the attorney of the mortgagee residing in Detroit, Mich.

The defendant also offered evidence tending to show that the defendant, acting in her own behalf and as the administratrix of her husband's estate, he having died in the year 1926, had made repeated efforts to pay the mortgage debt, and was ready, willing, and able to pay the same; that she had attempted to intervene in a divorce proceeding between the mortgagee and her husband, and paid the money into court, even before the debt was due, and had made other efforts to protect her home covered by the mortgage, worth something like $6,000; that the mortgagee was willing to settle for the amount due with interest, and that the defendant was ready and willing to pay the same, and that such settlement was prevented by the attitude of the plaintiff, who claimed that the said Ida B. Culpepper Greene owed him for attorney's fees, and, as soon as the debt matured, proceeded to foreclose, and thereafter insisted on the payment of attorney's fees for foreclosure and interest at 10 per cent. per annum, which was not tendered in full.

While it is well settled that equitable defenses are not available in a court of law as a defense to an action of ejectment, it is also settled that a defendant so sued may show that a conveyance of the title on which the plaintiff relies was obtained by fraud under such circumstances as to render it void, and this is a defense cognizable by a court of law. McCormick v. McCormick, 221 Ala. 606, 130 So. 226; Clarkson v. Pruett, 201 Ala. 632, 79 So. 194; Brown v. Hunter, 121 Ala. 210, 25 So. 924; Bain v. Bain, 150 Ala. 453, 43 So. 562; Loeb & Brother v. Manasses, 78 Ala. 555; Mathews v. Mobile Mutual Insurance Company, 75 Ala. 85; 67 L. R. A. 867 note; 19 C.J. 1085, 1086; Warvelle on Ejectment, § 254; Newell on Ejectment, p. 449, § 16.

Whether or not the evidence offered by the defendant tends to show such fraud as made the question one for the jury we need not decide, for the reason that the plaintiff has failed to establish a legal title in himself to the property sued for, and was not entitled to recover.

Appellant's contention that the decree by the court sitting in equity is res judicata as to the regularity of the foreclosure and of appellant's title cannot be sustained. That decree, after sustaining the demurrers to the bill, recites: "The court is of the opinion that the bill of complaint cannot be further amended so as to give it equity and that this cause should be dismissed. It is therefore ordered, adjudged and decreed that this cause be and the same is hereby dismissed," etc. Rule 28 of Chancery Practice, invoked by this contention, is that "If the complainant, after the cause is set down to be heard, cause the bill to be dismissed on his application, or if the cause is called on to be heard in the court, and complainant makes default,...