Williams v. Wilson

• Decision Date: 16 December 1920
• Docket Number: 8 Div. 291
• Citation: 87 So. 549,205 Ala. 119
• Parties: WILLIAMS v. WILSON et al.
• Court: Alabama Supreme Court

87 So. 549

205 Ala. 119

WILLIAMS v. WILSON et al.

8 Div. 291

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

Bill by Charlie Williams against James E. Wilson and others for an accounting and for redemption from foreclosure. From a decree sustaining demurrers to the bill, complainant appeals. Reversed and remanded.

Chenault & Guin, of Russellville, for appellant.

W.H Key, of Russellville, and Kirk & Rather, of Tuscumbia, for appellees.

McCLELLAN J.

Bill by appellant to disaffirm foreclosure sale under the power in mortgages and to redeem in virtue of the equity of redemption, upon the ground that the purchaser, averred to have stood in the relation of a mortgagee trustee (for that purpose), was not authorized by the mortgages to buy at the foreclosure sale.

Demurrers to the bill by several of the defendants were sustained, and the appeal is from that decree. The substance of the demurrers will be reproduced in the report of the appeal.

An accurate statement of the facts alleged in the bill and their legal effects will remove the bases for some phases of the discussion in the briefs of the respective solicitors. On January 8, 1889, Charles Mac Smith executed a mortgage on the land in question to Burgess, to secure a note maturing December 25, 1889. On an unaverred date, prior to December 3 1904 (the date of the foreclosure sale), this mortgage was assigned and transferred to Wilson Bros. & Co.

On December 31, 1889, Charles Mac Smith executed to Wilson Bros & Co. a mortgage on the same land to secure a note maturing November 15, 1890. This mortgage bears a credit indorsement under date December 8, 1890.

On December 3, 1904, Wilson Bros. & Co. foreclosed under the power contained in both of these mortgages, and Wilson & Co. became the purchaser at the sale.

"Wilson Bros. & Co.," mortgagee in one of the mortgages and assignee of the other, was a mercantile copartnership composed of James E. and Charles E. Wilson and W.A. Orman. "Wilson & Co.," the purchaser at the foreclosure sale, was and is (presumably) a similar partnership composed of James E. and Charles E. Wilson. It thus appears that the two Wilsons were at the time in question partners in both firms, the mortgagee-assignee firm and the firm purchasing at the foreclosure sale. The bill avers:

"The mortgages on which foreclosure was attempted did not provide that mortgagees might purchase at their own sale; whereas James E. Wilson and Charles E. Wilson, doing business as Wilson & Co., attempted to purchase at the mortgage sale conducted by themselves as members of the partnership of Wilson Bros. & Co."

Now, as to appellant's (complainant's) relation to the mortgagor, the mortgagor's relation to the land, and the appellant's right to the relief sought, the following are the averments of fact appearing in the bill; Charles Mac Smith, the mortgagor, died "during or about the year 1899," when the appellant (complainant), his grandson, was "only a few months old," the appellant attaining his majority in June, 1919, and filing this bill February 11, 1920. Charles Mac Smith was, the bill avers, "in the lawful possession" of the land "at the time of his death." It appears expressly from the allegations of the bill that appellant (complainant), intestate's grandson, and a son of Charles Mac Smith, deceased, "constituted, were and now are all the heirs at law of the said" mortgagor. The effect of this averment was to exclude any implication that appellant's (complainant's) parent, the child of the mortgagor, was in life when the mortgagor died.

There is in the bill no impeachment of the validity of the foreclosure sale under the powers of sale in the mortgages, the primary object of the bill being directed to disaffirmance on the single ground stated and then redemption under the thus revived equity of redemption. Pitts v. Mortgage Co., 157 Ala. 56, 60, 47 So. 242.

If otherwise so entitled, an heir at law may seasonably disaffirm a voidable foreclosure sale under the power in a mortgage and redeem. Rainey v. McQueen, 121 Ala. 191, 194, 25 So. 920. Twenty years from the date of the sale under the power, not from the date or the law day of the mortgage, is the period during which those under disability, and so otherwise entitled, may disaffirm a foreclosure sale, under the power, where the mortgagee or one standing in his relation purchases thereat without authority to do so given in the mortgage; infant heirs having 2 years after attaining their majority to disaffirm and redeem, provided, as stated, this is done within 20 years from the date of the sale. Alexander v. Hill, 88 Ala. 487, 7 So. 238, 16 Am.St.Rep. 55, Pitts v. Mortgage Co., supra, Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623, and Sharp v. Blanton, 194 Ala. 460, 69 So. 889, among others. If in point of fact, contrary to the effect of the averments of this bill, appellant's (complainant's) parent survived the date of the foreclosure sale, then the doctrine of Canty v. Bixler, 185 Ala. 109, 64 So. 583, will deserve consideration. The appellant's bill having been filed within less than a year after he attained his majority and within 16 years after the foreclosure sale in 1904, neither laches or staleness of the demand nor any limitation predicated of mere lapse of time rendered this bill subject to grounds of demurrer taking those objections. If appellant (complainant) had been sui juris for the period of 10 years after the death of his grandfather and the possession of the land had been held by the mortgagee and the successors of the mortgagee for 10 years under the circumstances stated in Dixon v. Hayes, 171 Ala. 498, 500, 55 So. 164, his right to redeem would have become barred. The doctrine of the cited decision and others in its line are without application to the cause made by the present bill.

With reference to the insistence for appellees that subsequent (to the foreclosure sale) grantees, made respondents in the cause, should be held to be entitled to the protection accorded innocent purchasers for value, it is to be noted First, that no specific ground of the demurrers asserts this defensive matter; and,...