McHan v. Ordway, Dudley & McGuire , 82 Ala. 463 ( 1886 )

SOMEBYILLE, J.

— 1. The complainants, as mortgagees, and purchasers at their own sale under the power of sale in the mortgage, were authorized to come into a court of equity, in order to have their purchase confirmed, and their title- perfected; and they could offer in their bill to have the lands resold, at the option of the mortgagor. This was settled when the case was last before us on appeal. — McHan v. Ordway, 76 Ala. 347. On. the authority of that decision, we hold that the amended bill had equity, and the motion to dismiss it.was properly overruled.

2. This being true, no additional ground of jurisdiction was needed, and the allegations of a fraudulent collusion between the defendants, to destroy the deeds to the land, and withhold them from the record, to the injury of complainants and the prejudice of their title, were needless to confer jurisdiction on the court, or to give the bill equity. Having assumed jurisdiction for one purpose, the court could retain it, so as to make its administration of justice effectual for the purpose of complete relief. - Johnson v. Smith, 70 Ala. 108; 1 Story’s Eq. Jur., § 64 (k).

3. There is nothing, we think, in the suggestion, that, as against the appellant, McHan, the present suit is a mere effort to bring into a court of chancery a naked congest as to the legal title of the mortgaged premises. Taking the allegations of the bill to be true, which we must do on motion to dismiss for want of equity, McHan acquired his interest in the property subsigue t to . the execution of the mortgage by Conant to the complainants, and with full notice ol it, and was owner, therefore, of nothing more than the equity of redemption in the mortgaged premises. Holding thus by privity of derivation from the mortgagor, he held in subordination to the rights of the complainants derived from the mortgage, and was a proper party defendant to the suit. He does not belong to that class of adverse claimants who can object to the litigation of their titles in a court of chancery. — Randle v. Boyd, 73 Ala. 282, 287; 2 Jones on Mort., §§ 1439, 1410; Lyon v. Powell, 78 Ala. 351.

1 The decree of the chancellor is free from error, and is affirmed.