Williams v. Troy , 39 Ala. 118 ( 1863 )

R. W. WALKER, J.

It is not necessary, in tbis case, that we should decide tbe question raised by counsel as to tbe constitutionabty, so far as it relates to antecedent mortgages, of the 8d section of the act of Feb. 8th, 1861, commonly known as the “stay-law.” — Acts of Called Session, 1861, p. 4. For, however that question may be decided, the chancellor’s decree dismissing the bill must be affirmed. If the provision of the 3d section of the act referred to, making it unlawful for the mortgagee to sell the property without having actual possession thereof, be unconstitutional, so far as it applies to mortgages such as this, executed prior to the passage of the act, and the power of sale contained in the mortgage itself does-not require that the mortgagee shall have actual possession before making sale, there is obviously no ground for an injunction. If, on the other hand, the mortgagee was bound, either by a valid law, -or by the mortgage itself, to have actual possession of the property before selling it, still there was no error in dismissing the bill, The bill shows that the mortgage debt is due, and that the complainants are in possession of the mortgaged property; but there is no tender of the sum due, nor is there any offer to deliver to the mortgagee the possession of the property. On the contrary, the complainants allege their inability to pay the debt, and avow their intention to remain in possession of the property covered by the mortgage, “as long as the laws of the land will allow them- to do so.” He who seeks equity, must do equity; and the mortgage debt being due, and the mortgagors being in possession of the property, it was at least incumbent on them (supposing that the mortgagee could not legally sell without first obtaining possession) to offer to deliver the possession, if not to make a tender of the amount due. — 1 Story’s Eq. § 64 e; Cunningham v. Davis, 7 Ired. Eq. 5; Hooper v. Bailey, 28 Miss. 328 ; Gliddon v. Andrews, 14 Ala. 733 ; Williams v. Ross, 33 Ala. 509. Instead, however, of offering to do equity, the complainants announce their purpose to withhold from the defendant that to which he is justly entitled, as long as the la,ws of the land will enable them to do so.

Decree affirmed.