Rudisill v. Buckner
| Decision Date | 21 October 1943 |
| Docket Number | 7 Div. 759. |
| Parties | RUDISILL v. BUCKNER et al. |
| Court | Alabama Supreme Court |
C.H. Young and Duke Logan, both of Anniston, for appellant.
Knox Liles, Jones & Woolf, of Anniston, for appellees.
This appeal is from an interlocutory decretal order of the circuit court, sitting in equity, sustaining the demurrer of the defendants to the amended bill, filed by one of the mortgagors against the purchaser at the foreclosure sale made by the mortgagee in the first mortgage, his vendee, and the transferee of the second mortgage.
Both mortgages were executed by the complainant and one B. Edward McGinnis, the first on February 21, 1940, to C.W.
Daugette Jr., to secure an indebtedness of $3,200; and the second to respondent A.E. Buckner or the Anniston Scrap Material Company, to secure an indebtedness of $4,000, of which A.A Buckner is alleged to be the transferee and holder. The property covered by said mortgages consists of nine lots numbered from 4 to 12, "in Block B, according to H.B. Blackwell's Subdivision of the property of Hartland-Duke Company, situated on West Tenth Street in the City of Anniston, Alabama."
The bill as amended alleges "that prior to and at the time of the foreclosure by the said C.W. Daugette, Jr., of his first mortgage, the improvements on said lot consisted of a large building suitable for and used for commercial purposes and certain storage tanks used for the storage of gasoline and oil; that respondents removed said tanks and changed the building on said lot from a commercial building to a manufacturing building, and is now conducting therein the business of making iron castings and other metal products and changed the form and size of said building and installed machinery as herein below set forth thereby rendering said building unfit for commercial purposes and entirely changed the use of said building, and complainant avers that said improvements shown on said Exhibit 'A' and herein set forth were unnecessary for the purposes for which said building was suitable and were and are unreasonable, and that Cupola and Stock House, Ramp for carrying up stock, Storage bin for coke, storage bin for sand, installation for raw material scales, cupola with blower, piping and drive, tumbler, grinding stand and drive, cleaning room, core oven, rocks, etc., trolley system in foundry, heat in old office, ventilator fan in old office, reglazing windows, air lines in foundry, patching and painting roof, oil house, borings house, outside tool house, dipping pit and rack, gas lines and burners, old machine shop, new machine shop, trolley system in machine shop, machine shop tool room, power inlet and distribution system, lighting system, wall plug system, bath house, boiler, tanks, showers, etc., new office, wiring new office and bath house, new water system, wiring watchman's house were not and are not improvements within the meaning of the statute, and complainant avers that said statement of the amount required to redeem is grossly excessive and in violation of the intent and purport of the redemption statute."
The bill also alleges "that the said C.W. Daugette, Jr., sold said above described lots en mass and not separately, and that by virtue of said sale, the said lots did not bring a fair and reasonable price and complainant avers that said alleged foreclosure is null and void."
The foreclosure under the power contained in the mortgage occurred on the 19th of February, 1941, and the complainant did not move to redeem until January 27, 1943. The bill was filed on February 1, 1943, without tender of the amount claimed to be due, and the only items disputed relate to the claim for permanent improvements. This claim is contested, not because it is excessive in amount, but on the ground that the additions made are not "permanent improvements" within the scope of §§ 732, 740, T. 7, Code 1940.
The bill as amended presents the case in two aspects: First, that the sale of the property en masse rendered the foreclosure void, and hence complaint is entitled to discharge the mortgage debt and any claim for reasonable and necessary improvements made to maintain the status of the property for the uses to which it was devoted, under the equity of redemptions, applying rents and damages for waste in reduction of such claims. Second, seeks redemption under the statute, without being required to pay the value of improvements made by the purchaser and his vendee in preparing and devoting the...
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In re Sharpe
...must show that the trust imposed on the mortgagee has been abused and that he has been injured by the sale. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So.2d 333 (1943). Id. at 931 (emphasis added).41 See also Muller v. Seeds, 975 So.2d 914 As Ames suggests, the relationship is limited. It d......
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Ex parte Lewis
...there is a difference between actionable fraud by misrepresentation of a material fact and an action for actual deceit. Rudisill v. Buckner, 244 Ala. 653, 15 So.2d 333. It would appear, however, that if the misrepresentation of a material fact was made willfully to deceive, or recklessly wi......
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Tidmore v. Citizens Bank & Trust
...must show that the trust imposed on the mortgagee has been abused and that he has been injured by the sale. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So.2d 333 (1943)." ‘ "A mortgagee's equitable duty to offer first by parcels cannot be abrogated by a general provision of the power of sale......
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Campbell v. Bank of Am., N.A.
...the power of sale and is, therefore, sufficient to invalidate the sale and the foreclosure deed. But see Rudisill v. Buckner, 244 Ala. 653, 655, 15 So.2d 333, 334–35 (1943) (stating that, “[i]n the absence of [a] statute to the contrary, the effect of a sale of mortgaged property at foreclo......