Vines v. Wilcutt

• Decision Date: 16 October 1924
• Docket Number: 6 Div. 161
• Citation: 102 So. 29,212 Ala. 150
• Parties: VINES v. WILCUTT et al.
• Court: Alabama Supreme Court

102 So. 29

212 Ala. 150

VINES v. WILCUTT et al.

6 Div. 161

Supreme Court of Alabama

October 16, 1924

Rehearing Denied Nov. 20, 1924

On Rehearing.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Bill in equity by Latt V. Vines against J.W. Wilcutt and others to foreclose a mortgage, etc. From a decree denying relief complainant appeals. Affirmed.

A.F Fite, of Jasper, and Pinkney Scott, of Bessemer, for appellant.

W.C Davis and Curtis, Pennington & Pou, all of Jasper, for appellees.

GARDNER J.

The original bill in this cause was filed by the appellant against the respondent J.W. Wilcutt and his wife, Mary Wilcutt, seeking a correction of description as to 40 acres of land embraced in a mortgage executed by respondents to complainant, and a foreclosure of the mortgage as thus corrected. In the amendment to the bill, however, it was alleged that this particular 40 was not owned by the mortgagors at the time of the execution of the mortgage to the complainant, and therefore was not subject to the lien of said mortgage. In view of this amendment, therefore, that feature of the bill seeking a correction of this description may be laid out of view, for, very clearly, the complainant can take nothing by the failure of the court to enter a decree correcting the description of this particular 40.

By another amendment to the bill the complainant alleged that after the filing of the original bill he learned that one S.N. Morris was advertising with a view of foreclosing a mortgage executed by the respondents J.W. Wilcutt and wife in 1907, which was some years prior to complainant's mortgage, and which embraced lands also included in the mortgage to complainant.

The bill as amended shows a foreclosure of the said S.N. Morris mortgage, but Morris was not sought to be made a party respondent to the bill until some time after the foreclosure sale had been completed. The amended bill contains averments attacking the validity of the Morris mortgage, and also seeking to establish against Morris an equitable estoppel; but these features of the amended bill are confessedly without support in the evidence, and may be laid out of view. Morris was made a party respondent by this amendment, and after the demurrer was overruled, answered the bill.

The cause was submitted for final decree on pleadings and proof, resulting in a decree dismissing the bill; from which decree the complainant has prosecuted this appeal.

The mortgage of S.N. Morris was duly recorded and has preference over that of complainant, that it was duly foreclosed under the power of sale contained therein, at which sale the said Morris (as fully authorized by the mortgage) became the purchaser, and that this foreclosure was had and fully completed prior to the time of the filing of the amended bill seeking to have said Morris made a party respondent, is all established without conflict. The mortgage to S.N. Morris embraced other lands not included in the mortgage to complainant.

The question of paramount importance presented on this appeal relates to the insistence of counsel for appellant to the effect that the complainant had a right as junior mortgagee to exercise the equity of redemption notwithstanding the foreclosure under the power of sale in the Morris mortgage, and this is sought to be done by offering to pay the debt due Morris under his mortgage less the value of the land embraced in the Morris mortgage and not included in that to complainant.

As opposed to this contention, it is urged that even in the exercise of the equity of redemption complainant should offer to pay the whole debt, and, failing to do so, the bill is without equity (27 Cyc. 1826; Francis v. White, 166 Ala. 409, 52 So. 349); but we do not reach a consideration of that question.

We are of the opinion that the foreclosure sale under the power contained in the mortgage cut off this equity of redemption and left remaining only the statutory right. It is to be observed that no effort is here made to exercise the statutory right of redemption, and counsel for appellant rest their case upon the right to exercise the equity of redemption, as previously stated. They rely upon the language of this court in Wiley Banks v. Ewing, 47 Ala. 418, to the effect that where a senior mortgage had been foreclosed under judicial proceedings, and the junior mortgagee had not been made a party thereto, he is not barred of the right to redeem. See, also, note to Jones v. Williams, 36 L.R.A. (N.S.) 426 (155 N.C. 179, 71 S.E. 222). The Wiley-Banks Case, supra, is not here in point. Here, there was a regular sale under the power contained in the mortgage, and the following language of this court in Powers v. Andrews, 84 Ala. 289, 4 So. 263, finds full application:

"But this sale under the power as effectually cut off this equity of redemption, and destroyed all rights incident to it, as if there had been a strict foreclosure by judicial procedure in a court of chancery, and the junior mortgagee had been made a party to it. When a regular sale is made under a power contained in the instrument, not only the mortgagor, but all persons claiming any interest in the equity of redemption by privity of estate with him, are considered as parties to the proceeding, and are precluded by it as fully as if they had been made parties defendant by regular subpoena in an ordinary foreclosure suit Childress v. Monette, 54 Ala 317. The sale, in other words, destroys the equity of redemption, and in this state transmutes it into a naked statutory right of redemption, limited to two years, with new incidents, privileges and liabilities, which are particularly set forth in the statute."

The foregoing language has found repeated approval in subsequent decisions. Aiken v. Bridgford, 4 So. 266, 84 Ala. 295; Hunter v. Mellen, 127 Ala. 343, 28 So. 468; Allison v. Cody, 206 Ala. 88, 89 So 238; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. To use the language of Hunter v. Mellen, supra:

"The foreclosure proceedings being regular, the sale under the power contained in the mortgage is equivalent to a strict foreclosure by a court of equity."

The case of Pitts v. F.L. Mortgage Co., 157 Ala. 56, 47 So. 242, cited by counsel for appellant, was for the purpose of disaffirming and setting aside a foreclosure sale to the end that the equity of redemption might be exercised, and is therefore without influence upon the instant case.

Here, the foreclosure sale was regular and stands unimpeached, and the complainant seeks to exercise the equity of redemption notwithstanding the sale was under the power contained in the mortgage, and effectually cut off and barred the equity of redemption.

The bill as amended seeking that relief was without equity, and properly dismissed.

Let the decree be affirmed.

Affirmed.

ANDERSON, C.J., and SAYRE and MILLER, JJ., concur.

On Rehearing.

GARDNER J.

Counsel for appellant upon this application for rehearing strenuously insist that the authorities noted in the original opinion are not in point, for the reason that in those cases the mortgages involved embrace the same property, while in the instant case appellant's mortgage included only 160 acres of the 320 acres in the senior mortgage. Appellant seeks to invoke the equitable principle of marshaling assets, which is well recognized by the authorities. 3 Pomeroy's Eq.Jur. §§ 1224-1226; 3 Jones on Mortgages, §§ 1620-1622; Farmers' Sav. & Bldg. Ass'n v. Kent, 117 Ala. 624, 23 So. 757; Prickett v. Sibert, 75 Ala. 315; Interstate Land Co. v. Logan, 196 Ala. 196, 72 So. 36; Threefoot Bros. v. Hillman, 130 Ala. 244, 30 So. 513, 89 Am.St.Rep 39; Pitts v. Am. Freehold L. & M. Co., 123 Ala. 469, 26 So. 286.

In Farmers' Sav. & Bldg. Ass'n v. Kent, supra, is the following quotation from Pomeroy, Eq. Jur.:

"Whenever the mortgagor has conveyed separate parcels of the mortgaged premises by warranty deed to successive grantees, and there are no special provisions in any of their deeds, and no other dealings between themselves or with the mortgagor which disturb the equities otherwise existing, a priority results, depending upon the order of conveyance. As between the mortgagor and all the grantees, the parcel in his hands, if any, is primarily liable for the whole mortgage debt, and should be exhausted before having recourse to any of theirs; as between the grantees, their parcels are liable in the inverse order of their alienation, and any parcels chargeable first in order must be exhausted before recourse is had to the second."

In section 1620 of Jones on Mortgages, supra, the author states:

"When the mortgagor has made successive sales of distinct parcels of the mortgaged land to different persons by warranty deeds, it is generally regarded as only equitable that the mortgagee, when he afterwards proceeds to foreclose his mortgage, should be required to sell in the first place such part, if any, as the mortgagor still retains, and then the parts that have been sold in the same subdivisions, beginning with the parcel last sold by the mortgagor."

And in section 1621 is the further statement:

"These equitable considerations have led to the adoption of the rule that the mortgagee in such case shall sell the mortgaged land in the inverse order of its alienation by the mortgagor; and it will be seen by the cases cited that this rule has been generally adopted."

And in the following section (1622) it appears that this rule has been generally held to apply to subsequent mortgages of the equity of redemption as well as to absolute conveyances of it. The foregoing authorities from our own state disclose that this equitable...