Thomas v. Jones , 84 Ala. 302 ( 1887 )

SOMEEVILLE, J.

1. The mortgagor, George M. Jones, having disposed of his entire interest in the mortgaged property by sale and conveyance to the complainant, James F. Jones, there was no necessity for making him a party defendant to the bill. The demurrer based on the fact of his non-joinder as a party defendant was properly overruled. Mims v. Mims, 35 Ala. 23; Lewis v. Elrod, 38 Ala. 17; Batre v. Auze, 5 Ala. 173.

2. The defendant Thomas, who was the mortgagee, is shown to have been by indirection the real purchaser at the mortgage sale, he having made a deed to Hichox, and the latter having re-conveyed to him without consideration. At the time of this sale and purchase by the mortgagee the land belonged to the complainant. He owned the equity of redemption which was cut off by the mortgage sale and purchased in by the trustee, and, therefore, had a right to- avoid the sale by the bill filed to redeem in proper time. — Downs v. Hopkins, 65 Ala. 508; Ezzell v. Watson, 83 Ala. 120; 2 Jones on Mortg., § 1876. This is not a case of the exercise of the statutory right of redemption. If it were, and any other person than the mortgagee himself were the purchaser, under the rule declared in Powers v. Andrews, 84 Ala. 289, and other cases following that decision, the bill would be entirely devoid of equity, on the ground that an assignee of the equity of redemption can not redeem under the statute after a valid foreclosure of the mortgage, either under a decree of a court of chancery, or under a power of sale contained in the instrument. But the rule' is clearly settled to be otherwise where the mortgagee, when unauthorized, purchases at his own sale. Not that the sale, so long as it is permitted to stand, is ineffectual to cut off the equity of redemption, for such is undoubtedly its legal effect. But the court, construing the transaction as a fraud on the rights of a cestui que trust by the trustee, will set aside the sale at the request of the injured party who files his bill to redeem within a reasonable .time, offering to do equity. When the sale is thus set aside the complainant’s equity of redemption is restored .to its original status, subject only to the lawful charges incident to redemption,-but otherwise it is completely disembarrassed of the sale.

3. The offer made in the bill to pay all that might be found due, on the taking of the account prayed, was clearly sufficient. An averment of a tender before the filing of the bill is only material as affecting the question of costs, and is not essential to the equity of the bill. — McGuire v. Van Pelt, 55 Ala. 344; Adams v. Sayre, 70 Ala. 318.

4. The court properly disallowed the item of twenty-five dollars claimed for an attorney’s fee expended in foreclosing the mortgage under the power. The mortgage did not specially authorize such a charge, and the term “expenses of sale,” occurring in the mortgage, would include nothing more than the ordinary expenses or costs of foreclosure, not extraordinary charges, such as attorney’s fees for services rendered in making the foreclosure.

We discover no error in the record, and the decree is Affirmed.