Todd v. Interstate Mortg. & Bond Co.

• Decision Date: 06 April 1916
• Docket Number: 7 Div. 759
• Parties: TODD et al. v. INTERSTATE MORTGAGE & BOND CO.
• Court: Alabama Supreme Court

71 So. 661

196 Ala. 169

TODD et al. v. INTERSTATE MORTGAGE & BOND CO.

7 Div. 759

Supreme Court of Alabama

April 6, 1916

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill by the Interstate Mortgage & Bond Company against Mary Annie Todd and others. From a decree for plaintiff, the named defendant appeals. Reversed and remanded.

Culli &amp Martin, of Gadsden, for appellant.

O.R Hood, of Gadsden, and E.D. Smith, of Birmingham, for appellee.

SAYRE J.

R.T Todd died, intestate, seised in fee of a vacant lot on Turrentine avenue in the city of Gadsden, and this was all the real property he owned. His wife, appellant, owned a lot on Fourth street which had been improved by the erection thereon of three apartments. The family occupied a rented house in another part of the city. Intestate left surviving him appellant and six children, his heirs, one of them a minor. There has never been any administration of his estate, nor any assignment of homestead or dower. Shortly after his death, the widow and children, to secure a loan of money to the children, joined in the execution of a mortgage to J.B. Martin. This mortgage covered both the above-mentioned lots. The children erected two houses on the Turrentine avenue lot, and upon their completion the widow occupied, and continues to occupy, one of them as a dwelling, receiving and using the rents from the other for the support and maintenance of herself and family. Four or five years later the widow and her children, all now certainly of age, executed and delivered the mortgage under which appellee claims. This mortgage also covered both pieces of property. The agreement as to facts states that appellant received no part of the proceeds of the mortgage, into which she entered for the sole purpose of securing the loan to her children by pledging her Fourth street property. However, she executed the mortgage and the notes thereby secured, assuming on the face of the transaction, and in fact so far as the mortgagee knew, equality of obligation with the heirs, and out of the proceeds the Martin mortgage was paid and discharged. This mortgage of latest execution contained apt words of conveyance and both special and general warranties applicable alike to both properties. Upon default there was a foreclosure under the power contained in the mortgage, and the mortgagee became the purchaser as it had a right to do under the terms of the security. The two properties were exposed for sale and purchased by appellee en masse at and for the sum of the mortgage debt and the expenses of foreclosure, a sum very materially less than the reasonable value of the property at the time. Afterwards appellant surrendered possession of the Fourth street property to appellee, as she had to do in order to retain her statutory right of redemption, but refused to surrender the Turrentine avenue lot, claiming to hold the latter by her right of quarantine and homestead. Thereupon appellee filed its bill, alleging the foreclosure and its purchase en masse, and praying that the mortgagors be required to elect whether they would affirm or disaffirm the sale, and, in the event of a disaffirmance, that its mortgage be foreclosed by appropriate decree. The heirs suffered a decree pro confesso. Appellant answered, making her answer a cross-bill under the statute, praying that the foreclosure be set aside, that the Fourth street property be sold in separate parcels, that the Turrentine avenue property be set apart to her and her minor child--meaning, of course, the child who was a minor at the time of the father's death--as a homestead, that the last-named property be not sold or partitioned during her life, and for general relief. To this answer, as a cross-bill, a demurrer was sustained. Appellee then amended its bill by withdrawing the averment of a sale en masse and the prayer that defendants be required to elect, and introducing a prayer that the sale under the power be confirmed by decree and appellee let into possession of the Turrentine avenue property. The heirs allowed this amended bill to be taken as confessed; but appellant again answered by cross-bill, to which, as before, the heirs were made parties defendant, renewing substantially the prayer of her former answer. After demurrer sustained to this cross-bill, appellee again amended by averring that appellant had elected to affirm the sale under the power by joining the heirs in an action at law in which the plaintiffs there sought to recover an amount alleged to be due to them by reason that appellee had bid in the whole property for an amount considerably in excess of the indebtedness secured by the mortgage, which action had been determined in favor of appellee. This, we believe, is a fair summary of the proceedings prior to the submission for final decree. The cause being submitted for decree on the bill and its amendments, the answer, the decrees pro confesso against the heirs, and the agreed statement of facts--which, we may remark, does not seem to have been intended to cover facts shown by the pleadings not to be in dispute--the chancellor confirmed in all respects appellee's right under the foreclosure sale. The widow appeals.

By joining the heirs in the execution of the mortgage to appellee after the death of her husband, appellant estopped herself, as against the mortgagee, to assert either dower or homestead rights in the property. This, under our decisions is clearly the case so far as the claim of dower or quarantine right is concerned. Jones v. Reese, 65 Ala. 134; Reeves v. Brooks, 80 Ala. 26; Lytle v. Sandefur, 93 Ala. 396, 9 So. 260. We can perceive no valid reason why the same rule should not be applied to appellant's claim of homestead. One certain conclusive consideration affects the two cases alike. Whatever may have been the case at the time of the execution of the Martin mortgage, when appellee took the mortgage now in question the heirs were all of full age, and they and the widow owned among them the whole fee and were entirely competent to convey it by deed or mortgage. The statute (Code, § 4197) does provide that, where a...