Steed v. Carmichael

Decision Date21 May 1931
Docket Number6 Div. 806,806-A.
Citation223 Ala. 193,134 So. 885
PartiesSTEED v. CARMICHAEL ET AL. KELLY v. STEED.
CourtAlabama Supreme Court

Rehearing Denied June 11, 1931.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill in equity by Leona B. Kelly against W. M. Carmichael, Robert S Allen, and Joe Steed, with a cross-bill by respondent Steed. From a decree sustaining a demurrer to the cross-bill cross-complainant appeals and complainant cross-assigns error.

Affirmed on direct and cross-appeals.

See also Kelly v. Carmichael, 221 Ala. 339, 128 So. 443.

Coleman Coleman, Spain & Stewart and W. H. Smith, all of Birmingham, for appellant and cross-appellant.

Howze & Brown and Cabaniss & Johnston, all of Birmingham, for appellee.

BOULDIN J.

The original bill was filed by Mrs. Leona B. Kelly, March 30, 1927, seeking a redemption of real estate from a foreclosure sale under mortgage.

Mrs. Kelly had become the owner of an undivided interest in a portion of the property subject to the mortgage.

W. M. Carmichael, assignee of the mortgage and purchaser at his own foreclosure sale under the power of sale in the mortgage, and R. G. Allen, a tenant in common with Mrs. Kelly, and sole owner of the equity of redemption in the other lands covered by the mortgage, were made parties respondent.

On May 2, 1927, Joe Steed was made party respondent by amendment, alleging that he claimed the right to redeem from such foreclosure sale and had filed a bill in equity to enforce such right, and that his rights in the premises should be adjudged in this suit.

A demurrer, filed by respondent Carmichael for misjoinder, was held not well taken by this court, on the ground that misjoinder can be raised only by the party who is improperly joined. Kelly v. Carmichael, 217 Ala. 534, 117 So. 67.

The cause proceeded to final decree granting Mrs. Kelly relief and decreeing the terms of redemption. This decree was reversed on her appeal for reasons shown in the opinion. Kelly v. Carmichael, 221 Ala. 371, 129 So. 81.

Respondent Carmichael thereafter filed an amended answer consenting to a redemption on the terms outlined in our decision, and made a motion to set the case for oral hearing.

On the same date respondent, Joe Steed, filed his answer, making same a statutory cross-bill.

The demurrers of respondent Carmichael going to the equity of the cross-bill were sustained, and the cross-bill dismissed as to him.

From this decree the present appeal is prosecuted.

This cross-bill of Joe Steed, whose equity is now involved, admits and adopts, as part of the cross-bill, all the averments of the original bill of Mrs. Kelly as last amended; alleges that R. G. Allen, co-respondent in the original bill, is largely indebted to cross-complainant, that the interest of R. G. Allen in the mortgaged property is subject to such indebtedness; and prays that the foreclosure sale be set aside, and the interest of R. G. Allen be sold for the satisfaction of his indebtedness to cross-complainant. There is a prayer for general relief.

The cross-bill, by reference to the original bill, discloses that all title and interest in R. G. Allen was acquired subject to the Carmichael mortgage.

Other averments of the cross-bill are to the effect that the deed was first taken in the name of Mrs. Allen, the wife of R. G. Allen, but for his use and benefit, or in fraud of the rights of Joe Steed, as an existing creditor. Taken as true, the effect was to constitute R. G. Allen the equitable owner as to his existing creditor from the date of purchase; equitable assets, subject to the prior mortgage, and so held at the time of the foreclosure.

The cross-bill, however, discloses that no lien had been acquired on such equitable interest by creditor's bill or otherwise prior to the foreclosure, but affirmatively shows the former suit to subject the same was, like the present cross-bill, filed after foreclosure. This, then, is a bill by a simple contract creditor of the owner of an equity of redemption, seeking to set aside a foreclosure sale for irregularity, to reinstate the equity of redemption and subject the same to cross-complainant's demand.

The sole ground for disturbing the foreclosure, as fully developed in our last decision, is that the property was sold as a whole when it should have been sold in parcels. The property had been laid off into blocks, lots, streets, etc., prior to the giving of the mortgage; but the mortgage was by general description, without regard to the plat, and the foreclosure followed the description in the mortgage.

Whether, on a final hearing, this would be shown such a breach of obligation, in the nature of a trust, as would call for setting aside the sale, on principles discussed on former appeals, is removed from the field of litigation by express consent of the mortgagee-purchaser to redemption by Mrs. Kelly on the terms applicable to such situation.

At all events...

To continue reading

Request your trial
6 cases
  • Dewberry v. Bank of Standing Rock
    • United States
    • Alabama Supreme Court
    • 11 Mayo 1933
    ... ... section 6570, Code of 1928, that was cumulative of the ... discovery sought by the bill. Ex parte Kelly (Kelly v ... Carmichael), 221 Ala. 339, 128 So. 443; Rosenau v ... Powell, 173 Ala. 123, 55 So. 789; Goodall-Brown & ... Co. et al. v. Ray, 168 Ala. 350, 53 So. 137 ... held not authorized by the broad power of sale of the ... separate tracts embraced in the mortgage; so in Kelly v ... Carmichael, supra; Steed v. Carmichael, 223 Ala ... 193, 134 So. 885. The foregoing decisions offer analogy of ... strict requirements of contract and statutory ... ...
  • Lee v. Macon County Bank
    • United States
    • Alabama Supreme Court
    • 7 Enero 1937
    ... ... al. v. Ward et al., 108 Ala. 278, 19 So. 354; Pollak ... et al. v. Millsap et al., 219 Ala. 273, 122 So. 16, 65 ... A.L.R. 110; Steed v. Carmichael et al., 223 Ala ... 193, 134 So. 885; Mallory et al. v. Agee, 226 Ala ... 596, 147 So. 881, 88 A.L.R. 1107 ... If the ... ...
  • COVINGTON CTY. BANK v. RJ Allen & Associates
    • United States
    • U.S. District Court — Middle District of Alabama
    • 13 Mayo 1977
    ...See Belcher v. Birmingham Trust National Bank, 348 F.Supp. 61 (N.D.Ala.), stay denied, 395 F.2d 685 (5th Cir. 1968); Steed v. Carmichael, 223 Ala. 193, 134 So. 885 (1931). Robertson has failed to prove either that the conditions in the Indenture have been waived or that the bondholders are ......
  • J. H. Morris, Inc. v. Indian Hills, Inc.
    • United States
    • Alabama Supreme Court
    • 27 Junio 1968
    ...to Morris and Ripps did owe a duty to Morris. Morris is not a simple contract creditor as was the cross-complainant in Steed v. Carmichael, 223 Ala. 193, 134 So. 885. Ripps asserts that where a mortgage conveys an entire tract, which is subdivided after the mortgage is made, the mortgagee h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT