Wittmeier v. Tidwell

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963 (Ala. 1906)
• Decision Date: 06 February 1906
• Parties: WITTMEIER ET AL. v. TIDWELL.

40 So. 963

147 Ala. 354

WITTMEIER ET AL. v. TIDWELL.

Supreme Court of Alabama

February 6, 1906

Rehearing Denied April 3, 1906.

Appeal from Chancery Court, Blount County; A. H. Benners Chancellor.

"To be officially reported."

Bill by S. L. Tidwell against J. S. Wittmeier and another. From a decree in favor of complainant, respondents appeal. Reversed and remanded.

George L. Smith, for appellants.

Emory C. Hall and W. L. Martin, for appellee.

ANDERSON J.

"Generally the purpose for which the power of sale is given being to afford an additional and more speedy remedy for the recovery of the debt, the mortgagor is by the contract bound to exercise necessary promptness in fulfilling it, and cannot complain of a legitimate exercise of the power. If in any case it is attempted to pervert the power from its legitimate purpose, and to use it for the purpose of oppressing the debtor, or of enabling the creditor to acquire the property himself, a court of equity will enjoin the sale, or will set it aside if it is made." 2 Jones on Mortgages, 1801; Loan Association v. Lake, 69 Ala. 456; Struve v Childs, 63 Ala. 473. The bill in the case at bar avers that the amount due upon the mortgage was tendered before any steps were taken to make a sale under the power contained. If this be true, a sale would be a useless ceremony for collecting the debt, which was the only purpose for which the power to make was given; and if the sum due had been tendered, and the mortgagee refused to accept it and proceeded to make a sale, this would be a clear perversion of the power, which would amount to oppression. The bill avers that the mortgagee did not accept the tender, but claimed that $40 was due as attorney's fees, and thereupon advertised the property for sale. Of course, the mortgagor must have tendered what was due, else the mortgagee would have the right to sell the property to collect what was due him; and if a part, and not all, had been tendered him, he could still make the sale, which would not amount to oppression or a perversion of the power.

The bill does not aver a tender of the attorney's fees, so if the same was due, the tender was not sufficient. If, on the other hand, it was not due and owing, then he clearly had no right to sell the property, if everything else due had been tendered. The mortgage provides for the payment of all attorney's fees "that may be legally incurred in collecting the indebtedness or in foreclosing this mortgage." The bill avers that the tender was made to the attorney of the respondent, but does not aver that it was made before steps had been taken to...