Welsh v. Coley

• Decision Date: 19 July 1887
• Citation: 2 So. 733,82 Ala. 363
• Parties: WELSH v. COLEY AND OTHERS.
• Court: Alabama Supreme Court

2 So. 733

82 Ala. 363

WELSH v. COLEY AND OTHERS.

Supreme Court of Alabama

July 19, 1887

Appeal from chancery court, Tallapoosa county.

Bill in equity by mortgagor to redeem.

The opinion states the facts.

W H. Barnes and J. A. Terrell, for appellant.

Oliver & Garrett, contra.

STONE C.J.

It is not denied in this case that Welsh executed to Coley his note for $267, due in December, 1872, and contemporaneously, a mortgage, with power of sale, on 220 acres of land to secure its payment. We think the testimony requires us to regard as proved the following state of facts: That notice of time place, and terms of sale was given by Coley, the mortgagee, as required by the mortgage; that public sale of the lands was made pursuant to the advertisement; that Barnes became the highest and best bidder at the sum of $280, and was proclaimed the purchaser; that the amount due to Coley on the mortgage, according to its face, was paid by Barnes to Coley; and that the latter executed to the former what was intended to be a title deed, but which was without witnesses, and without certificate of acknowledgment. It is also shown that the sale under the mortgage took place June 20, 1873; that Barnes acquired possession of the premises in the spring of 1876; and he, and those claiming under him, have held possession ever since. The present bill was filed January, 1885.

The bill filed by the mortgagor, Welsh, to redeem from Coley, the mortgagee, sets up usury in the mortgage debt; avers payment of the money actually due, with lawful interest upon it; and offers to pay any balance due, should there be such balance. It makes no allusion to the sale, or attempted sale, set forth above, but treats the mortgage, in all respects, as if no attempt at foreclosure had been made. If there was any usury in the debt, it is not shown that Barnes had any notice of it until the debt had been paid to Coley, the attempted deed executed, and Barnes had acquired possession. The chancellor dismissed the bill.

Several reasons are urged in support of the equity of the bill, and as an excuse for ignoring the foreclosure proceedings set forth above. It is contended that the record fails to show notice of sale was given as required by the mortgage. We think the proof of notice is sufficient. In the second place it is objected that Barnes acted as auctioneer in making the sale, became the purchaser at the sale thus conducted by him, that the mortgagee was not present, and that he (Barnes) had no written authority for making the sale. Neither of these, nor all combined, are sufficient, without more, to justify setting the sale aside at the instance of the mortgagor. Jones, Mortg. § 1861. At least such is the rule after an acquiescence of nine years. Garland v. Watson, 74 Ala. 323, and authorities cited; McLean v. Presley, 56 Ala. 211; Cooper v. Hornsby, 71 Ala. 62.

We need not inquire whether Coley could have claimed the purchase as being made for him, as he is not shown to have asserted such claim.

It is urged, in the third place, that the memorandum of the sale made by Barnes, who cried the sale, was insufficient to take the case without the statute of frauds. The particular objections are that Barnes was not an auctioneer, and that the memorandum is substantially...