Cheek v. Waldrum , 25 Ala. 152 ( 1854 )

LIGON, J. —

In order to ascertain the rights and remedies of the parties to this record, it is necessary to ascertain the true state of the title to. the premises at the time they were levied on by the sheriff of Lowndes county, at whose sale Cheek became the purchaser.

Turner is the source of title, so far as the record discloses, and there is no question between the parties as to his right to convey. The proof shows that he, by deed, conveyed the fee in the lots to Lanier. Lanier conveys it, first, by deed of mortgage, with the power of sale, to Neil, his creditor, and then, while this mortgage was outstanding and unsatisfied, he conveys' the same estate, by deed of bargain and sale, to Farley. The latter then took the estate subject to the prior lien created by the mortgage, which lien took precedence of his title and was paramount to it. After the law day of the mortgage, the estate in the mortgagee became absolute, subject only to Lanier’s equitable right to redeem, before sale under the mortgage. It does not appear that there was any redemption, either by Lanier, or Farley, the purchaser under him. The mortgagee sold under his mortgage, and Smith became the purchaser at that sale.

At this point, the title again becomes entire in one person; for it is well settled, that a sale under mortgage, after the law day has passed, made in pursuance to the terms of the deed, vests the purchaser with all the title which the mortgagor conveyed by the mortgage, and he takes it divested of the equity of redemption.

' Smith, then, took the fee in the promises at his purchase under the sale made by the mortgagee, wholly unincumbered of the right of Lanier, or Earley as the purchaser from him, to redeem under the mortgage. This being the case, the deed from Smith to Mrs. Earley (now Mrs. Waldrum), conveyed the fee to her. ' It is true, this deed is in the nature of a quitclaim deed to a certain extent, but it may be better styled a deed of bargain and sale,’ without covenants of warranty, except as against the grantor and those claiming under him. It conveys, by its express terms, all right, title, interest and claim which the grantor has in and to the premises, to Mrs. Earley, the grantee, which, as we have seen, was the fee in the land.

With this title, thus vested in her, she intermarries with Waldrum, who went into possession of the premises, and who, by virtue of his marriage, took, at the least, an estate for her life, which is a legal freehold estate, and is clearly the subject of levy and sale under execution issued on a judgment at law against him. — Carleton & Co. v. Banks, 7 Ala. 32; Neil v. Johnson, 11 Ala. 615. The estate which Earley took under the deed from Lanier, although apparently an absolute fee, was subject to be divested, by a sale of the lands under the prior mortgage to Neil. When this sale was made, and another became the purchaser, that other was invested with the absolute fee, and all title was divested out of Earley, or those claiming through him. Mrs. Waldrum, his widow, could not charge the title in his hands with any claim of dower, since it had its origin in a conveyance which existed before her husband had any claim whatever, which hovered over the title in his hands while he lived, and divested it out of those claiming under him, by the sale made after his death. Fry v. Merchants’ Ins. Co., 15 Ala. 810.

This view is conclusive against the relief sought by the cross bill,-which should have been dismissed by the chancellor, and his failure to do so is error.

On the casé made by the original bill, answers and proof, the contract of sale appears to .be, that Mrs. Waldrum was to pay to Cheek the sum which the latter paid to the sheriff on his purchase at the sale made by that officer under execution, amounting to five hundred and ninety-five dollars. This is stated in the bill, and expressly admitted in the answers.— There is some discrepancy between the bill and answers, as to the time when the purchase money was to be paid, and an apparent difference on the question of interest. On the latter subject, however, the difference between the bill and the answers of Waldrum and wife, is more in words than in fact.— The bill charges that it was agreed between the parties that the defendant should pay interest on the purchase money from the day of sale, while the answers assert that no agreement was made upon the subject. The law attaches interest as an incident to a debt from the moment it is due, unless there is some agreement between the parties to the contrary. It is not pretended, in this case, that Cheek agreed to postpone the payment of his debt without interest; on the contrary, the principal defendants admit, in their answers, that they intended to pay interest while the principal debt remained unpaid, and say that they would have done so if the complainant had not acted in bad faith with them, and attempted to repudiate the contract altogether. This does not relieve them from its payment.

As to the time when the purchase money was to be paid, there is no difference between the alternative charge in the bill, and the statements of the answer of Waldrum and wife. They both agree that it was to be paid as soon as the money could be made by the defendants from keeping tavern on the premises. This time has long since passed, according to the bill; but this is denied in the answers, which assert that nothing has been made by them. The proof shows, however, that the defendants must have received from monthly boarders alone, in the years 1850 and ’51, more than a thousand dollars. How much was received from other sources, .during these and other years, does not appear ; but we deem it fair to presume that a sum greatly more than was necessary to pay the complainant's demand has been received by the defendants, Waldrum and wife, since the sale to them set out in the bill.

Under these circumstances, it was error to dismiss the complainant’s bill. The right decree would have been, to foreclose Mrs. Waldrum’s equity of redemption in the premises, and unless the sum due the complainant for his purchase money were paid at an early day, to be fixed by the chancellor, to direct a sale of the premises for its payment. A reference to the master should have been made, in order to ascertain the balance of the purchase money due and unpaid. The trustee, Gray, should have been perpetually enjoined from setting up against the purchaser at the sale under .the decree, the title vested in him by the deed from the complainant.

As, however, this was not done by the court below, the cross bill must be dismissed at the costs of Waldrum and wife ; and the decree of the court below on the original bill reversed, and the cause remanded, at the costs also of Wal-drum and wife.