Whiteman v. Taber

• Decision Date: 27 November 1919
• Docket Number: 3 Div. 401
• Citation: 203 Ala. 496,83 So. 595
• Parties: WHITEMAN v. TABER.
• Court: Alabama Supreme Court

83 So. 595

203 Ala. 496

WHITEMAN v. TABER.

3 Div. 401

Supreme Court of Alabama

November 27, 1919

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by Mary G. Taber against John S. Whiteman to redeem from mortgage foreclosure sale. From a decree overruling demurrers to this bill, respondent appeals. Affirmed.

The averments of the bill are that in 1915 M.L. Ashley and husband mortgaged the lands to Teague Hardware Company, and after default the same was sold under the power in the mortgage on February 23, 1917; that John S. Whiteman became the purchaser at said mortgage foreclosure sale, and that a deed was executed to him conveying all the right, interest and title that the said Ashleys had in and to said property that on February 20, 1917, said Mittie L. Ashley and husband conveyed said property by warranty deed to Mittie Ashley Whiteman, subject to the said and other mortgages mentioned in said deed; that after said mortgage sale John Whiteman entered into possession of said property and has been in possession ever since holding same under said sale; that on October 10, 1918, the said Mittie Ashley Whiteman assigned to Mary G. Taber the statutory right of redemption that she had in and to said property; and that complainant is now the owner of said statutory right, and is entitled to redeem from said Whiteman. Paragraph 5 in the bill shows that on the day following complainant made written demand on John S. Whiteman for all the debt and lawful charges claimed by him, and on October 19, 1918, said Whiteman rendered her a statement purporting to be the items of debts, improvements, taxes, and other things which she claimed he was entitled to receive before complainant could redeem, and that complainant, not being satisfied as to the value of permanent improvements made by him after he acquired title, appointed a referee, and on request Whiteman did likewise, and the two referees found the value of all the improvements, including the growing crop to be $1,051.45; that complainant tendered to Whiteman the sum of $5,925 for the redemption of said place, which complainant alleges is more than the amount to which said Whiteman was entitled; and that said Whiteman counted the money and returned it to complainant with the statement that he neither accepted nor rejected the same. This amount was brought into court. It does not appear so from the bill, but it seems from the record that John S. Whiteman was the husband of Mittie Ashley Whiteman, and that he did not join in her assignment of the right of redemption. This is asserted by the grounds of demurrer, and it is also set up in the demurrer that there is no equity in the bill, and that it is not shown that complainant has the right to redeem.

Ball &amp Beckwith, of Montgomery, for appellant.

Hill Hill, Whiting & Thomas, of Montgomery, for appellee.

THOMAS J.

The bill is for redemption of real estate from mortgage foreclosure. Respondent demurred on the grounds that there was "no equity in the bill," that the facts averred do "not show that the husband of said Mittie Whiteman assented to and concurred in the alleged assignment of her right of redemption by joining in her alleged alienation thereof in the manner prescribed by law for the execution of conveyances of land," or that she "owned the right to redeem said lands on, to wit, October 10, 1918, when it is alleged she assigned the same to complainant."

Counsel for appellant say:

"The bill does not allege that the husband of the assignor of her statutory right of redemption joined with her in said assignment. *** If the wife of this appellant had exercised the statutory right of redemption alleged in the bill to be hers, or if in any other way she had acquired title or an equity in the land, she could not have disposed of it by any valid transfer or assignment without her husband's joining in the execution of such instrument. It follows as a matter of necessity that she could not transfer the right to redeem without her husband's joining."

To this counsel for appellee reply that respondent's conduct from the beginning of the transaction involved in this litigation manifestly shows that he wished to deprive "his wife of her birthright." The arguments by respective counsel suggest the decision of these questions: Has a wife (the assignor) the right to assign her personal and statutory privilege of redemption, or to redeem her lands sold under the powers contained in a mortgage, without the husband's assent; and, as to this, would the law be different if the husband had become the purchaser of the wife's property at foreclosure sale and from him redemption was to be effected? These questions have not been decided by this court.

Under the common law the requisites to an estate by the curtesy were, to wit: (1) Marriage; (2) actual seisin of the wife; (3) issue; and (4) death of the wife. 4 Kent, Com. 29. Out of this has come a diversity of decision and of statute. In Wiltsie on Mortgage Foreclosure, vol. 1 (3d Ed.) § 160, it is said that in those states where statutes have made wholly separate and independent of each other the respective estates of a husband and wife the husband "has no right to curtesy nor to any other interest in his wife's real property, and is consequently not a necessary party [in a bill for redemption, we interpolate], so far as the title is concerned"; that it is only when the husband has obligated himself for the indebtedness or by contract as to the property that "he is a necessary party if a personal judgment for deficiency is sought against him." Wootten v. Vaughn, 81 So. 660; First Nat. Bank v. Elliott, 125 Ala. 646, 659, 27 So. 7, 47 L.R.A. 742, 82 Am.St.Rep. 268; Marbury Lumber Co. v. Harriet Posey, 142 Ala. 394, 38 So. 242; B.L. & S. Ass'n v. Camman, 11 N.J.Eq. 382; Thornton v. Pigg, 24 Mo. 249. It has been held in another jurisdiction that the husband of a mortgagor, having a separate estate, is generally not a necessary party on foreclosure if the sale in the action to foreclose takes place during the wife's lifetime, but upon the death of the wife intestate, after the accomplishment of the foregoing requisites to an estate by curtesy, the husband becomes a necessary defendant to an action for foreclosure, in order to cut off his curtesy and to perfect the title. Leggett v. McClelland, 39 Ohio, 624; Fogal v. Pirro, 23 N.Y.Super.Ct. 100; Hope v. Shevill, 137 A.D. 86, 122 N.Y.Supp. 127. It has also been held that the wife may foreclose a mortgage assigned to her on her husband's lands in her own name ( Bean v. Boothby, 57 Me. 295; Trenton Banking Co. v. Woodruff, 2 N.J.Eq. 117); and that she may acquire title under foreclosure the same as any other person ( Toliver v. Morgan, 75 Iowa, 619, 34 N.W. 858; Hesseltine v. Hodges, 188 Mass. 247, 74 N.E. 319). In this jurisdiction we have held that a creditor of the husband has no right to redeem from a mortgage by the husband and wife on the wife's land, and that such creditor suing to subject to the payment of his debt a building erected by the husband with his own money on his wife's land has no right to redeem from a mortgage on the land executed by the wife. Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 So. 136; Ware v. Seasongood, 92 Ala. 152, 9 So. 138.

In Wootten v. Vaughn, supra, a wife's right of dower was declared not a property right, but only a right of action personal to the widow after the death of the husband; that the right of redemption from a regular foreclosure was paramount to any right of which the widow of the purchaser at such sale was dowable. Held the wife of the purchaser was not a necessary or proper party to a bill against the purchaser and assignee for redemption, but that his mortgagee was a proper party. Where a widow had joined in the execution of a mortgage in a release of dower, and she was not a party to the foreclosure, held that she may redeem upon paying the full amount due on the mortgage debt (not for a less sum), although the purchaser at foreclosure sale had paid greatly less than the amount due on the mortgage. McGough v. Sweetser, 97 Ala. 361, 12 So. 162, 19 L.R.A. 470; Eslava v. Lepretre, 21 Ala. 504, 56 Am.Dec. 266; Duval v. McLoskey, 1 Ala. 708; 1 Wiltsie on Mortg. Foreclosure (3d Ed.) § 156; volume 2, § 1133.

In First Nat. Bank of Anniston v. Elliott, 125 Ala. 646, 659, 27 So. 7, 47 L.R.A. 742, 82 Am.St.Rep. 268, the holding was that the joinder of the husband, Mr. Elliott, with the wife in a bill for redemption by a judgment creditor was justified by the averment that the purchaser at foreclosure sale, Mrs. Elliott, had thereafter joined her husband in the execution of a contract of sale of the land to a third person; and the bill prayed that the husband be required to join in a deed with his wife on effectuation of redemption. Thus was the husband a necessary party in a decree for affirmative relief sought against the husband and the wife--a reconveyance by them of the property to the complainant.

In Marbury Lumber Co. v. Harriet Posey, supra, the husband was the mortgagor and liable for the debt, and it was with the mortgagee's representatives or assignees that accounting on redemption was to be had. The subsequent conveyance by the husband to the wife did not change the fact that it was with no other person than the husband "with whom the accounting of the amount of the mortgage debt may be had," and for this reason alone was it held that he was an indispensable party with the wife for a binding decree to enforce the equity of redemption, It was declared that the deed was intended as a mortgage; that it was indispensable to a "proper adjustment and adjudication of the rights of all the parties that the rights of the mortgagor [[[the husband] should be concluded by...