Whiteman v. Taber

• Decision Date: 10 February 1921
• Docket Number: 3 Div. 487
• Parties: WHITEMAN v. TABER.
• Court: Alabama Supreme Court

87 So. 353

205 Ala. 319

WHITEMAN v. TABER.

3 Div. 487

Supreme Court of Alabama

February 10, 1921

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

Bill by Mary G. Taber against John S. Whiteman, to redeem certain property from a mortgage foreclosure sale, and to settle and adjust all the rights and equities between the parties. Decree for complainant, and respondent appeals. Affirmed.

For the facts in this case, as well as the pleadings, see former report in 203 Ala. 496, 83 So. 595.

Ball &amp Beckwith, of Montgomery, for appellant.

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

SOMERVILLE J.

The equity of this bill was settled on a former appeal, and against the main contentions of appellant here. Whiteman v. Taber, 203 Ala. 496, 83 So. 595. We see no reason now to change or amplify what we said and held on that appeal.

It is insisted that complainant is the assignee of an assignee of the statutory right of redemption here asserted, and is therefore not entitled to exercise the right. As a matter of fact, Mrs. Whiteman never actually assigned the right in question to Baker, and if she breached, or if she and Baker mutually abandoned an executory and conditional agreement in that behalf, it was clearly no concern of respondent's. Mrs. Whiteman assigned her right to complainant, and not to Dr. Baker.

It is further insisted that the assignment was fictitious and fraudulent, and that therefore a court of equity will not allow the assignee to prosecute this suit. This contention does not find support in the record. It is of course the law as held in Nicrosi v. Calera Land Co., 115 Ala. 429 22 So. 147, that a court of equity will not allow the prosecution of claims which by simulation merely have been assigned for the purpose of evading equitable defenses which could have been asserted against the assignor. Such is not the case here.

Appellant invokes the rule, also, that only the real party in interest can maintain a suit. But in a suit like this the "real party in interest" is the person who owns the right which is sought to be enforced. The fact, if it be a fact, that this complainant intends to surrender its fruits to her sister, the mortgagor, at some future time, though she is under no legal obligation to do so, is not of legal significance. This question, however, seems to have been settled adversely to appellant's contention on the former appeal.

If all that appellant charges in this respect should be conceded, it would not show nor tend to show any fraud in the premises. The sole object of the statute in giving this right of redemption was to afford protection to those whose rights would otherwise be...