Boutwell v. Steiner , 84 Ala. 307 ( 1887 )

SOMERYILLE, J.

1. The mortgagor, Hinson, having unconditionally sold and conveyed to the appellant Boutwell his entire interest in the land, being a mere equity of redemption, he was not a necessary party to the present suit, the purpose of which is to foreclose the mortgage lien. His assignee only need be made a party defendant. — Batre v. Auze, 5 Ala. 173; Wilkinson v. May, 69 Ala. 33; Barbour on Parties, 463; Story’s Eq. Pl. § 197.

2. The mortgage having been recorded in the proper county before Boutwell purchased the land, he was charged with a knowledge of the lien created by it. His possession under the purchase could not mature into a good title, under the operation of the statute of limitations, short of ten years. Smith v. Gillam, 80 Ala. 296; State v. Conner, 69 Ala. 212. This period of time did not elapse between the possession taken under the sale and the filing of the present bill.

3. The appellee never having been made a party to the bill filed by Mrs. Hinson against her husband, by which she set up a resulting trust in the mortgaged lands, is in no manner prejudiced by the decree rendered in that case. Owen v. Bankhead, 76 Ala. 143.

The demurrer to the original bill, raising these points, was properly overruled, .even admitting the appellant’s right to assign errors on the decree rendered August 30th, 1886. That decree, we are inclined to think, however, is final, and the present appeal not having been taken until September 24th, 1887, more than a year from that date, and being confined by the condition of the appeal bond to the decree rendered July 7th, 1887, on exceptions taken to the register’s report, the appellant could not assign errors on the first decree, and the motion to strike out these assignments could properly be sustained. But we can well rest this opinion on the ground that the first decree is entirely free from error.

4. Nor do we discover any error in the last decree, confirming the register’s report. The amount allowed by the register for the mules sold under the mortgage was the price bid for them at the sale. It is true, they were purchased by the mortgagee at his own sale, but nine years. had since elapsed up to the present suit, and no objection had been interposed by the mortgagor showing his disapproval of the purchase and asking to disaffirm the sale. His only mode of doing this was by filing a bill and proposing to do equity by paying the mortgage debt. — Ezzell v. Watson, 83 Ala. 120; Garland v. Watson, 74 Ala. 323. The appellant certainly can not exercise this option for him.

5. The mortgagor had bound himself to pay all costs of recording the mortgage, and the costs and expenses attending the enforcement of the collection of the mortgage debt. This stipulation was as much binding on his assignee, the the appellant, as the mortgage debtor himself, and fastened a lien on the land for these reasonable expenses. We do not see that the several amounts allowed by the chancellor, under this head, are at all unreasonable, and his decree must be affirmed.