Tutwiler v. Atkins , 106 Ala. 194 ( 1894 )

HEAD, J.

— We have given this case careful consideration, and can see no reason to depart from what we said of it when it was here, upon substantially the same record, on a former appeal. — Atkins v. Tutwiler, 98 Ala. 129. The facts of the case are fully set forth in that opinion. We then determined that Tutwiler did not become a purchaser of the land, by virtue of his bid and payment of part thereof, at the attemptéd foreclosure of the Woodruff & North mortgage, but that he became thereby only a transferee in equity, pro tanto, of the mortgage ; the interest therein so acquired being in the proportion which the amount he paid on the bid bears to the whole amount secured by the mortgage. We further determined that his possession of the land thereafter was similar to that of mortgagee in possession, and his liabilities those of such mortgagee, subjecting him to all the liabilities and duties which legally attach to that relation, in general, and entitling him to its benefits. ' When the case was remanded the chancellor rendered a decree which, in our judgment, accords to him, as transferee, all the protection which the equity of the case demands.

There was no element of adverse holding oh the part of Tutwiler which prevented the lawful transfer by Woodruff & North of their remaining interest in their mortgage, or the transfer by the Dundee Company of its prior mortgage on the same premises, to the defendant, Mary B. Atkins, under the doctrine of maintenance; his holding being under ir conditional foreclosure of a mortgage, the condition not having been complied with. His possession, as we have said, under the facts which environed him, was under, and in subordination to, the former, and, if that would aid the complainant’s cause, there was never, on his part, any actual repudiation, carried home to the mortgagees, of their rights -under their respective mortgages. • They were at liberty to transfer them, at will, and, as a consequence, Mary B. Atkins was at liberty to puchase them. She, therefore, became, by her purchase of them, their lawful owner to the extent of the amounts remaining unpaid, thereon; Tutwiler, as we have seen, being entitled to an interest, as transferee, in the onq under which he attempted to purchase. Being thus the owner, she could have foreclosed the mortgages in equity, or under the powers of sale ; or, dealing fairly with the mortgagor, Florence R. Atkins, she was at liberty to acquire the equity of redemption by contract with the latter. This she did when she took the deed of conveyance from Florence R. Atkins. Having lawfully acquired the mortgages, she had the right to go forward and perfect her title by purchasing the equity of redemption, even though Tutwiler had been then in the actual, adverse possession of the land. The doctrine of maintenance does not apply to such relation. Alabama State Bank v. Barnes, 82 Ala. 607. If we consider, therefore, the amendment of the bill which was proposed by the complainant, after the cause was remanded, as having been allowed, no relief could be obtained under it, wherefore there was no available error in the refusal of its allowace. The decree of the chancellor is affirmed.