Thompson v. Suttle

• Citation: 244 Ala. 687,15 So.2d 590
• Decision Date: 18 November 1943
• Docket Number: 2 Div. 187.
• Parties: THOMPSON v. SUTTLE.
• Court: Supreme Court of Alabama

15 So.2d 590

244 Ala. 687

THOMPSON v. SUTTLE.

2 Div. 187.

Supreme Court of Alabama

November 18, 1943

Appeal from Circuit Court, Bibb County; John Miller, Judge.

Lange Simpson, Brantley & Robinson, Jas. A. Simpson, James C Manning, and John W. Lapsley, all of Birmingham, for appellant.

McQueen & McQueen, of Tuscaloosa, for appellee.

THOMAS Justice.

The appeal is from the ruling of the lower court in overruling appellant's demurrer to appellee's bill of complaint.

The bill was filed by former mortgagors against the devisee of the purchaser, to redeem lands sold under mortgage foreclosure sale, pursuant to the powers contained therein. The foreclosure was on November 11, 1933, and the bill was filed January 14th, 1943.

There are many grounds of demurrer challenging the equity of the bill. They may be grouped as:--(1) the allegations seeking redemption under an alleged oral agreement; (2) the sufficiency of the allegations of the bill to show estoppel of appellant to rely upon the defense of the statute of fraud, and (3) the sufficiency of the allegations to excuse appellee's delay in seeking to enforce the alleged right of redemption from such foreclosure sale.

The bill of complaint alleges that appellee and his father were joint owners or tenants in common of that certain tract of land described in the bill subject to two mortgages; the prior mortgage being from the former owner J.C. Suttle to the Bank of Centerville; and the second being from E.C. Suttle Sr., and appellee to J.C. Suttle, for the balance of the purchase price of said lands. Said mortgages were respectively executed on February 24, 1925, and December 18, 1925. These mortgages were dully acquired by J.F. Thompson and thereafter foreclosed by him as transferee on November 11, 1933, and at which sale he became the purchaser under the powers therein contained.

It is further averred that said transferee Thompson died on March 17, 1941, and by his last will and testament devised said property to his wife, the appellant in this cause, who was also named in the pleading as executrix under the will of her deceased husband.

The bill further avers that before the foreclosure sale, appellee made an effort to sell parts of the land, which sale was not consummated, due to the fact that appellee's father and coowner E.C. Suttle, Sr., had died, and it was impossible to secure the due execution of conveyances by all of the heirs at law of said Suttle to the proposed conveyance. It is further averred (¶ 9 of the bill) that J.F. Thompson thereupon agreed with appellee that "he would foreclose said mortgages and become the purchaser at the foreclosure sale for the purpose of vesting title to said real estate in one individual so that the prospective sales, hereinabove referred to, could be carried out and completed, and that in furtherance of this agreement, between the said J.F. Thompson and Complainant, both of said mortgages were foreclosed and said Thompson became the purchaser at the foreclosure sale as hereinabove set forth."

It is further averred in said paragraph nine of the bill that it was agreed between the parties that the statutory right of redemption would be extended by the said "Thompson indefinitely and that the two year period provided for under the laws of the State of Alabama for redemption of real estate from mortgage foreclosure sale would not be used, enforced or relied upon by the said Thompson to prevent a redemption of the said real estate by complainant." Code 1940, Tit. 7, § 727.

It is further alleged that after such proposed sale had not been consummated, and within two years from the date of foreclosure, the said Thompson assured complainant that he would not be pushed for the amount due on the mortgages, and that the time to redeem would not be insisted upon by him, and that complainant believed and relied upon such statements, assurances and conduct of the said Thompson and "down to the time of the death of said J.F. Thompson did not redeem from the said J.F. Thompson, the said real estate."

The bill further alleges that the conduct and assurances of Thompson "lulled complainant into the security that the statutory time to redeem would not be insisted upon and that complainant, acting upon such assurances and conduct of said Thompson down to the time of his death, did not redeem from him the said real estate."

It is further alleged that on September 9th, 1941, after the death of Thompson, appellee served upon the appellant a written demand for a statement in writing of the amount of the mortgage debt and lawful charges, and in response thereto the appellant denied appellee's right to redeem and refused to furnish the statement so demanded under the statute. There is the further averment of an offer to pay said mortgage indebtedness and all lawful charges on redemption of said property.

The principal ground of demurrer is that the alleged oral agreement or assurance of the redemption of land is shown to be within the statute of frauds, as set out in Code 1940, T. 20, § 3(5), which reads as follows:

"§ 3. Certain contracts to be in writing, else void.--In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing: * * *

"(5) Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof be paid, and the purchaser be put in possession of the land by the seller."

Such was the law when the respective mortgages were made, Code 1923, § 8034(5), and when the foreclosure was had.

It is settled in this jurisdiction by the statutes and decisions that an oral agreement to convey an interest in land is void unless the purchase money or a portion thereof is paid and the purchaser is put in possession of the land by the seller. The equity of redemption of a mortgagor is extinguished by a valid foreclosure and thereafter remains only a statutory right of redemption, which is a personal privilege granted to the person entitled to redeem. An agreement to allow redemptions after the statutory period has expired is an agreement to convey an interest in land and is within the provisions of the statute of fraud. Bank of New Brockton v. Dunnavant, 204 Ala. 636, 639, 87 So. 105; Goree v. Clements, 94 Ala. 337, 10 So. 906.

The recognized general rule is stated in Junkins v. Lovelace, 72 Ala. 303, by Mr. Justice Stone, to the effect that if the parol agreement is to allow redemption of land after the expiration of the statutory period, it is within the statute of frauds, and such is the effect, regardless of the fact of whether the agreement was made before or after the expiration of the statutory period. This holding has been adhered to by this court. Woolen v. Taylor et al., 241 Ala. 316, 2 So.2d 413.

The exceptions to this general rule are where the oral agreement or some act of the mortgagee or purchaser at the foreclosure sale is held to be a fraud or such deception as to lull the adverse party in interest to a false sense of security. To accord equitable relief in such case, it is held that, the person who has practiced the fraud or deception may not plead the statute of frauds; that is to say, may not use the statute as an instrument of fraud.

These cases recognize the oral agreement as being within the statute of frauds and to avoid the action must be based on fraud, that amounts to an estoppel, to plead the statute. For example, in Woolen v. Taylor et al., supra, it was shown by the mortgagees after foreclosure agreed with the mortgagor to permit redemption for a less sum than that paid at foreclosure sale; that before the expiration of the two-year period the mortgagor tendered the amount he agreed upon and the bill for redemption was promptly filed on failure to accept the amount tendered. This court held that there was estoppel to prevent the mortgagee from...