Lide v. Park , 135 Ala. 131 ( 1902 )

HARALSON, J.

The sales under the mortgages were attended by no secrecy, but were openly made, after due advertisement of the same, at the places they were advertised to take place, and the deeds from the mortgagees to the purchaser, Robert Park, in full execution of the foreclosures, were very soon thereafter, — on the 20th January, 1879, — duly recorded in the probate office. Indeed, from the averments of the bill it would appear that Iiobert Park acted for the mortgagees and purchased the property for the purpose of afterwards conveying the same to the said Howard Park. The latter was the owner of the Limnel Park and Charles McDade mortgages, and acted for his wife, Janie, with her knowledge and consent in the foreclosures. The power to foreclose her mortgage having been bestowed upon her, before her marriage, however, she was capable, afterwards, of executing the power alone, without her husband’s cooperation.—Hardin v. Darwin, 66 Ala. 61; Gridley v. Wynant, 23 How. (U. S.) 500. In all this there appeal's to have been no conduct on the part of Howard Park, his -wife, Janie, or of Eobert Park, such as would taint the sales with illegality.

The relation of Howard to his wife’s statutory estate, if he continued to occupy such relation towards her after the foreclosure of the mortgages, necessarily ceased at her death, on the 28th May, 1878. Since that time, and since the foreclosure sales, he and those claiming possession under him, have continued to occupy and claim said lands as their own, and if he and they thus continued to hold for ten years, they had a perfect title in law and equity, free from any trust whatever.—Brackin v. Newman, 121 Ala. 311.

The only violation of any trust complained of is that alleged to have been committed bv said Howard, aided by his said wife, Janie, in the purchase of said lands under said mortgages. Whatever may be said of his conduct in this respect, it is certainly true that the effect of what was done was to vest the legal title in him, subject only to the right of his wife seasonably expressed, to repudiate his action, and to ask a court of equity to declare the purchases made, to be for her benefit; and, if entitled to do this, after she had executed her deed to the purchaser at the foreclosure sale, she could only have done so by offering to' do equity by paying back to him the amounts paid out by him in the purchases with interest, and other lawful charges thereon. She died, as stated, on the 28th Stay, 1878, without ever having sought to disaffirm these transactions, and was thus prevented to do so afterwards. There was no express trust between the complainant and. the said Howard, and the only one that could be said, in any event, to exist between them, was a constructive trust, arising by operation of law, and this he seeks by his bill to enforce. It is as the heir of said Janie, and not otherwise, he claims. Whenever the statute of limitations began to run against her, it did as to him.

The bill makes a plain case of repudiation by her and her husband of the statutory trusteeship' between them, and shows the assertion of a title by him under his purchases at said mortgage sales, and the conveyances by the mortgagees to him, in hostility to the world. When this was done, in open repudiation of any claim or right of complainant, as a remainderman, to these lands, complainant had a right to resort to a court of equity to protect his interests, if he had any, and to compel the grantee, Howard Park, to respect his original trust. “A trustee of an express trust, purchasing at his own sale, commits an open and conclusively prejudicial breach of his trust, yet his purchase discharges the express trust, and converts him into a constructive trustee, of which character the cestuis que trust may avail themselves by a proceeding in equity seasonably begun,— within two years under our rulings, unless there be special circumstances justifying greater delay.”—Robinson v. Pierce, 118 Ala. 275, 295, and authorities there cited; Haney v. Legg, 129 Ala. 619; Brackin v. Newman, 121 Ala. 311. The complainant is not shown to have been under any legal disability to sue at the time of the alleged breach' of trust, and from aught appearing, he might have filed his bill in 1878 or, at the latest, in 1879, to claim and protect his interests. If it be said that he did not know of this repudiation of his rights in those years, it does appear that in 1879, by due diligence he might have ascertained the fact. The deeds that disclosed it were of record in the probate court in January. 1879. This bill was not filed until the 13th May, 1898, and was barred by the lapse of time, to say nothing of the question of ladies, or any right he may have had originally to recover.

Affirmed.