Stocks v. Young , 67 Ala. 341 ( 1880 )

BRIOKELL, C. J.

— 1. The objects of the bill are, to vacate the sale of the lands made under the trust.deed, because the creditor for whose security it was made was the purchaser, and to let in the grantor to redeem, on taking an account of the debt, excluding usury, which, it is averred, entered into it, and charging the creditor with rents while he and his vendee were in possession ; or, if that relief cannot be obtained, to let the grantor in to redeem under the statute. We do not now intend considering whether a bill in equity presenting such alterations can be supported, for it is plain that as a bill for statutory redemption, this bill is wholly insufficient and without equity, There is no averment that before filing the bill the complainant made a tender of the amount of the purchaser’s bid, with ten per cent, per annum thereon, and demanded redemption. Nor is there any distinct averment that within ten days after the sale under the trust deed, possession of the premises was surrendered to the purchaser. The purchaser, or his vendee, were not in default, unless a tender of the amount of the bid, with ten per cent, interest thereon, had been made, and a court of equity will not (unless circumstances exist which will excuse the tender), intervene to compel the redemption. — Spoor v. Phillips, 27 Ala. 193; Moore v. Lynn, 35 Ala. 701. The statute makes it a condition precedent to the redemption, that the debtor must within ten days have delivered possession of the premises to the purchaser. Unless the condition is performed, or the debtor remains in possession by the consent of the purchaser, the right of redemption does not accrue. Sanford v. Ochtalomi, 23 Ala. 669; Paulling v. Meade, Ib. 505.

2. There was no irregularity in the sale made by the trustee. All the terms and directions of the power contained in the deed of trust were observed. Nor was there any want of good faith and fair dealing in the trustee, or creditor, attending the sale. There was no oppression of the grantor, no advantage taken of his necessities.' It appears very clearly that he was present, approving 'the sale, declaring to his unsecured creditors, who were making inquiries, that the whole transaction was fair and just. It may be that all sales under powers in deeds of trust, securities for debts, at which the creditor becomes the purchaser, should be closely watched, as should be sales by a sheriff, when the judgment creditor, for whose benefit they are made, becomes the purchaser. There is the opportunity for unfairness and oppression, from which the debtor is entitled to protection. But it is quite an error to suppose, that if, at either sale, the creditor becomes the purchaser, the purchase is voidable at the mere election of the debtor, as would be a purchase made by a mortgagee or trustee at his own sale. There is not the relation of trust and confidence, which exists as to trustee and cestui que t> usl, disabling the trustee from acquiring by purchase the trust estate, though he may not take advantage of the relation, and may pay an adequate price, nor is there, as when a mortgagee purchases at his own sale, the conflicting rights and interests of buyer and seller. The disability of either to purchase at his own sale, save subject to its vacation at the mere election of cestui que trust, or mortgagor, seasonably expressed, rests upon the broad ground that duty and interest must not be brought into conflict. The creditor secured by a deed of trust, owes to the debtor, as he owes to all with whom he may deal, fairness and good faith. It is also a duty not to take advantage of the power he may have over the trustee, and in directing the sale, to oppress the debtor, and not to avail himself of the power to obtain the property at a sacrifice. But he does not stand in such a relation that it is the policy of the law to disable him from purchasing at the sale by the trustee, and obtaining a title which will be free from impeachment, when the transaction is open, fair, and just. That he may be the purchaser, is often a sufficient reason for preferring the deed of trust to a direct mortgage. And that he has the ability of purchasing, often prevents a sacrifice of the property. It is always his interest to see that it brings a sum sufficient to pay his debt, and this affords some security to the debtor against loss by the sacrifices some times attendant upon compulsory sales. Lynn v. Jones, 6 Humph. 533; Holmes v. Richards, 18 How. 143; Lucas v. Oliver, 34 Ala. 626. There is no greater reason for disabling the creditor from purchasing at the sale made by the trustee, than there would be for disabling a mortgagor from purchasing under his own decree of foreclosure, or a judgment creditor from purchasing at a sale under his own execution. That each may purchase cannot be doubted. — 1 Perry on Trusts, § 199 ; Freeman on Executions, § 292. The case of Wade v. Harper, 3 Yerger, 383, to which we are referred, may, on its peculiar facts, as was said by the same court in Lynn v. Jones, supra, have been correctly decided. It cannot be extended to sales under deeds of trust, when the creditor has no other power over the sale, than on default in the payment of the debt, to direct the trustee to execute the trusts. The lands were sold for their full value— there was no want of good faith in the trustee or creditor, and we hold the sale was not voidable at the mere election of the debtor.

Th6 decree of the Chancellor must be reversed, and a decree here rendered dismissing the bill. The appellee must pay the costs in this court and in the Court of Chancery.