Ezzell v. Watson , 83 Ala. 120 ( 1887 )

SOMERYILLE, J.

— Where the mortgagee becomes the purchaser at his own sale, under a power contained in the mortgage, the established doctrine in this State is, that such sale is not absolutely void, but only voidable at the election o£ the mortgagor, seasonably expressed. In other words, he has the optional right to affirm or disaffirm. the sale within a reasonable time. — Harris v. Miller, 71 Ala. 26; Dozier v. Miller, 65 Ala. 511; McLean v. Presley, 56 Ala. 211; Adams v. Sayre, 70 Ala. 318.

What constitutes a reasonable time, under this rule, varies usually with the peculiar circumstances o£ each particular case. But, in view of the importance of fixing some definite time, in ordinary cases, in order to impart more certainty to the law, and afford greater repose to titles, our later decisions have inclined to settle on two years, as reasonable, by way of analogy to the time fixed by statute for redemption of realty sold under mortgages, and purchased by other persons than the mortgagee. — Code, 1876, § 2877; Cooper v. Hornsby, 71 Ala. 64; Comer v. Shehan, 74 Ala. 452. This limitation of two years is prima facie applicable, where no peculiar features mark the case, but may be shown to be unreasonably short, by proof of facts which render its application inequitable and unjust.

The present bill was filed more than six years after the mortgage sale, and, unless it can derive some aid from extrinsic facts alleged in it, the bill is undoubtedly barred by lapse of time.

The first fact 'relied on to preclude this bar is, that another bill was filed on the 31st day of March, 1879 — within less than one year of the date of sale — expressing an option to disaffirm and set aside the sale. This bill was, however, dismissed without prejudice, on the ground that there was no averment or prayer going beyond this single purpose of desired disaffirmance — no offer being made to redeem by paying .the mortgage debt, or to otherwise do equity. — Garland v. Watson, 74 Ala. 323. The mere filing of this bill did not operate as a disaffirmance of the sale. It expressed mental dissatisfaction in reference to tbe transaction, but nothing more. An election to disaffirm involves action, where action is requisite to do equity. The mortgage sale, as we have said, was valid until avoided. It could be avoided only by paying, or offering to pay the mortgage debt, with interest and costs of sale, subject to certain deductions incident to the mortgagee’s trust relation. This the complainant failed to do before the filing of the present bill, which, as we have said, comes too late.

The only other fact alleged as an excuse for delay is based on the negligence of the attorney who filed the first bill. That is unavailing to the complainant. The negligence of complainant’s attorney is the negligence of complainant himself, and he must be bound by it, as if the act were really and formally his own.

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