Norton v. British American Mortgage Co. , 113 Ala. 110 ( 1896 )

BUICKELL, C. J.

The demurrers of the respondents, which were sustained by the chancellor, are not identical; and it it probable, were intended to present different questions and different lines of defense. Tire demurrers of the British American Mortgage Company seem to rest solely on the theory, that the rights the complainants are seeking to enforce, are. the rights conferred by the statute, (Code of 1886, §§ 1879-91), on a judgment creditor to redeem the lands of a judgment •debtor, which had been sold in execution of a power of sale contained in a mortage. While the de•murrers of the other respondents seem to rest on theory that it is not shown by the bill, that at the time of the sale under the mortgage, the complainants had an interest in the lands, which entitled them to redeem ; and further, that as more than two years after the sale had elapsed before the filing of the bill, the lapse of time was a bar to any right to redeem, the complainants could assert.

The demurrers of the Mortgage Company would be well taken, if the complainants were asserting the statutory right of redemption. But it is not the statutory right the bill seeks to enforce. It is the equity, derived from the common law, of a judgment creditor, who by purchase at a sale under legal process issuing on his judgment, has succeeded to the equity of redemption of the judgment debtor and mortgagor, to be let in to redeem the mortgage. The equity is essentially different and distinct from the legal right the statute creates, and which can but seldom, if ever, come into existence, until the equity has been barred by a sale under the decree of a court of equity, or under a power in the mortgage.-Cramer v. Watson, 73 Ala. 127.

It is true, as a general rule, that a sale of lands in conformity to and in execution of a power contained in the mortgage, is as effectual to cut off and bar the equity of redemption as a decree of foreclosure in a court of equity ; it leaves nothing to the mortgagor but the right to redeem the statute creates and confers.-3 Brick. Dig. 656, § 332. But this principle is not so applied when a mortgagee, not being authorized by the mortgage, directly or indirectly, becomes the purchaser at his own sale.-Thomas v. Jones, 84 Ala. 302. Such a sale does not divest the equity of redemption of the mortgagor; it is voidable at his election, or of whosoever may have succeeded to the equity of redemption, if the election be seasonably expressed.-1 Lead. Eq. Cases (Part 1), 244; Downs v. Hopkins, 65 Ala. 508; Dozier v. Mitchell, Ib. 511; Kelley v. Longshore, 78 Ala. 203.

' What is a reasonable time in which the election to avoid the sale must be manifested, it was held in Ezell v. Watson, 83 Ala. 120, was two years, byway of analogy to the time fixed by the statute for the exercise of the statutory right of redemption. But it was said by the court: “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.” In Alexander v. Hill, 88 Ala. 488, there was an extended discussion of the rule, and it was said the limitation was not statutory, but judicial; that it was “not the result of legislative mandate, but of judicial opinion, that such period is usually a reasonable time for the exercise of the option of affirmance or disaffirmance, with which a purchase by the mortgagee at his own sale arms the mortgagor. The basis of the doctrine is laches, and not staleness of demand. The sale cuts off the equity of redemption, as long as it is permitted to stand, but leaves in the mortgagor, and those claiming under him, the right to disaffirm it, and the consequent right to redeem upon such disaffirmance. But the law requires diligence of the mortgagor in the assertion of this right, and in the absence of special circumstances, holds him to have waived the right, and to have affirmed the sale, unless he elects to the contrary within two years. The whole theory of the limitation, therefore, rests on the presumption of ratification after the lapse of two years, in ‘ordinary cases.5 In extraordinary cases, cases involving peculiar circumstances, which rebut the presumption, it will not be indulged.”

The rule prevailing in courts of equity, prior to these decisions, was, that the election to avoid the sale must have been manifested within a reasonable time ; there must not have been unreasonable delay, unexplained acquiescence ; and whether there was such delay, was dependent upon the facts and circumstances of each particular case. Accepting, that the true theory of the rule announced in the cases to which we have referred “is laches, and not staleness of demand,” it follows, that when laches cannot be imputed, the rule is not applicable, Laches is but negligence ; in cases of this character it is the omission to assert rights, by remedies the law provides. It cannot be imputed if there be no want of diligence in the pursuit of those remedies ; no want of diligence in resorting to them.

The complainants were simple contract creditors of the mortgagor. Prior to the sale under the mortgage, they instituted suit against the mortgagor by attachment, which was levied on the lands embraced in the mortgage. There was no want of diligence in the prosecution of the suit; delays in its termination, by the rendition of final judgment, occurred, but they were the incidents of the course of practice and business in the courts, not attributable to suitors; so that when judgment was obtained, three days more than two years after the sale under the mortgage had elapsed. The levy of the attachment created a lien on the equity of redemption, a right to charge it with the payment of the judgment which might be obtained, in priority of any subsequent alienation the mortgagor might make, or of any subsequent incumbrance created by him, or of any subsequent lien in favor of other creditors, arising by operation of law. But the lien did not of itself transmit to the complainants the equity of redemption, nor confer upon them the right to exercise it. There is but little of resemblance between the lien created by the levy of an attachment on lands, and the lien of an execution. The one, in its very nature, is less stringent, frailer and more uncertain than the other. The one is incipient, inchoate and conditional. It begins - with the levy of the attachment, but for its value it is dependent upon the condition that judgment is obtained upon which process may issue, authorizing a sale of the property attached. When the levy is on lands, the death of the defendant pendente lite, works the destruction of the lien created by the levy, for the reason that, if he died intestate, eo instanti, the lands descend to his heirs, or if he died testate, they pass to his devisees. The personal representative succeeds to no estate or interest in them, and a judgment against him will not charge or bind them. Personal actions do not survive, and are incapable of revivor against heirs or devisees. As the title resides in them and they can not be made parties, a judgment binding or affecting the lands cannot be obtained; there is no procedure by which they can be divested of their title, though the levy of the attachment created a lien continuing during the life of the ancestor. This is the frailty and uncertainty of the lien as the statutes have created it.-Phillips v. Ash, 63 Ala. 414; Grigg v. Banks, 59 Ala. 311; McClellan v. Lipscomb, 56 Ala. 256.

The lien created by the levy of the attachment, because of its character, because of its frailty and uncertainty, did not confer upon the complainants a present capacity, or a right to redeem the lands from the mortgage. The capacity aird right was conditional; dependent upon the rendition of judgment against the mortgagor, upon which process could issue subjecting the lands to sale for its satisfaction. It is only a judgment creditor, who can exercise the common law equity of redeeming lands from a mortgage; to the full enforcement of his rights the mortgage is an impediment or obstacle, he has in equity a right to remove. — 2 Jones Mort., § 1069. There are authorities holding that an attaching creditor may be let in to redeem lands from a mortgage. We suppose the statutes on which they are founded, must be valiant from our statutes — that the attaching creditor must acquire larger rights than he acquires under our statutes; if this be not true, we are not prepared to follow them. Until the rendition of judgment against the mortgagor, the complainants had not the capacity to avoid the sale under the mortgage ; had not the right to redeem the lands. Until the right of redemption accrued, the time in which-the right must be exercised did not begin to run. There was of consequence no room for the imputation of laches to the complainants, and it results from what we have said, the demurrers to the bill were not well taken, and should not have been overruled.

The decree of the chancellor is reversed, a decree will be entered overruling the demurrers and the motion to dismiss the bill for want of equity, and the cause will be remanded.

Reversed, rendered and remanded.