Ward v. Ward

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Ward v. Ward, 108 Ala. 278, 19 So. 354 (Ala. 1896)
• Decision Date: 15 January 1896
• Parties: WARD ET AL. v. WARD ET AL.

19 So. 354

108 Ala. 278

WARD ET AL. v. WARD ET AL.

Supreme Court of Alabama

January 15, 1896

Appeal from chancery court, Dale county; Jere N. Williams Chancellor.

Suit by Mack Ward and others against John G. Ward and others to set aside a sale of lands under a mortgage, and for other equitable relief. There was a decree for defendants, and plaintiffs appeal. Affirmed.

The bill in this case was filed on September 13, 1893, by the appellants, heirs of William J. Ward, deceased, against the appellees. It was shown by the averments of the amended bill and the exhibits thereto that on October 9, 1883, William J Ward and wife executed to Oates & Cowan a mortgage conveying certain lands, which was given to secure the payment of the indebtedness evidenced by the note given by William J. Ward to Oates & Cowan, which note was also dated October 9, 1883 and payable one day after date; that there was conveyed in this mortgage a house and lot in the town of Ozark, known as the "Huff House," and a plantation containing 165 acres, known as the "Brown Place"; that William J Ward, the mortgagor, died on March 19, 1886; that on November 15, 1887, Oates & Cowan transferred and assigned the mortgage executed to them by William J. Ward to the defendant John G Ward, and that on March 30, 1888, John G. Ward pretended to sell the lands conveyed in the mortgage under the power contained therein. It was further averred in the bill that before the transfer of the mortgage by Oates & Cowan to John G. Ward the mortgage debt had been paid in full by the mortgagor; that John G. Ward paid no consideration for said transfer; that there was no legal foreclosure of the mortgage, and the sale of the land thereunder was void because there was no legal notice of the foreclosure sale given by the assignee; and that at said sale John G. Ward, the transferee of said mortgage, himself became the purchaser, at a price greatly disproportionate to the value of the land sold thereunder. It was further averred in the bill that the assignment of the mortgage which was indorsed thereon was insufficient to pass the mortgagee's title to the land into the transferee, and that the sale under the mortgage was violative of the statute of frauds, because the auctioneer who conducted the sale did not make a memoranda thereof at the time, as required by the statute. The prayer of the amended bill was that the sale of said lands made by John G. Ward under the mortgage be set aside, and declared void, and that the title attempted to be conveyed by the auctioneer at said sale be declared null and void, and divested out of the purchaser and his subvendees, and that the purchaser and his subvendees be required to account for the annual rental of the property sold at said foreclosure sale; that an account be stated, ascertaining the amount, if any, due upon the mortgage; and that upon the payment of said amount the complainants be allowed to redeem said property from under the mortgage. In their answer to the bill the respondents averred a valid transfer and assignment to John G. Ward by Oates & Cowan of the mortgage executed to William J. Ward upon payment by John G. Ward of the balance due upon the mortgage debt; that the assignment indorsed upon the mortgage was sufficient to pass the mortgagee's title; and that the sale under the mortgage was in all respects regular and valid, proper notice being given, and the mortgagee having the right, expressly granted him in the mortgage, to purchase at his own sale. The evidence in behalf of the complainants tended to sustain the averments of the bill, except that they introduced no evidence in support of the contention that there was no requisite notice of the mortgage given, while the evidence in behalf of the respondents tended to sustain the averments set forth in their answer. On the final submission of the cause on the pleadings and proof...