Wittmeier v. Tidwell , 147 Ala. 354 ( 1906 )

ANDERSON, J.

“Generally, the1 purpose for which the power of sale is given being to afford an additional and more speedy remedy for'the recovery of the debt, the mortgagor is by the contract bound to exercise necessary promptness in fulfilling it, and cannot complain of a legitimate exercise of the power. If in any case it is attempted to pervert the power from its legitimate purpose, and to use it for the purpose of oppressing the debtor, or of enabling the creditor to acquire the property himself, a court of equity will enjoin the sale, or. will set it aside if it is made.” — 2 Jones on Mortgages, 1801; Loan Association v. Lake, 69 Ala. 456; Struve v. Childs, 63 Ala. 473. The bill in the case at bar avers that the amount due upon the mortgage was tendered before any steps were taken to make a sale under the power contained. If this be true, a sale would be a useless ceremony for collecting the debt, which was the only purpose for which the power to make was given; and if the sum due had been tendered, and the mortgagee refused to accept it and proceeded to make a sale,' this would be • a clear perversion of the power, which would amount tO' oppression. The bill avers that the mortgagee did not accept the tender, but claimed that $40 would be due as attorney’s fees, and thereupon advertised the property for sale. Of course, the mortgagor must have tendered what was due, else the mortgagee would have the right to sell the property to collect what was due him; and if a part, and not all, had been tendered him-, he could still malee the sale, which would not amount, to oppression or a perversion of the power.

The bill does not aver a tender of the attorney’s fees, so, if the same were due, the tender was not sufficient. If, on the other hand, it was not due and owing, then he clearly had no right to sell the property, if everything else due had been tendered. The mortgage provides for the payment of all attorney’s fees “that may be legally incurred in collecting the indebtedness or in'foreclosing this mortgage.” The hill avers that the tender was made to the attorney of the respondent, but does not aver that it was made before steps had been taken to foreclose the mortgage or collect the debt. If the respondent had incurred any attorney’s fee before the tender was made, such reasonable attorney’s fee so incurred should have been tendered, as', well as any costs .incurred in a foreclosure before the tender. The third ground 'of demurrer should have been sustained. The bill'sufficiently offers to do equity by offering to pay. the amount due, .and'it is not necessary that it should have been paid'into court, if such a thing were possible in the case at bar. — Loan Association v. Lake, supra; Rogers v. Torbut, 58 Ala. 523.

The hill'avers that Wittmier.had assigned thé'mortgage to Bradford, but thé assignment as disclosed on the mortgage did not divest Wittmier' of the legal title.'— Robinson v. Cahalan, 91 Ala. 479, 8 South. 415; Sanders v. Barron, 122 Ala. 194, 25 South. 55. In this case Wittmier was a proper, if not a necessary, party.

The chancellor erred in overruling the fifth and sixth grounds of demurrer. The bill does not set up the amount tendered, or the quantity and class of the cotton,' but simply avers “the money and cotton called for by the mortgage.” This was but a conclusioh'of the pleader, and' the bill should hávé specified and defined'what was tendered, in order that the chancellor could ascertain whether or not it was the “money and cotton called for by the'mortgfige.” . , ‘ , ' . .

, , The decree of the chancellor is reversed, and thé cause remanded. ' '

Tyson, 'Dowdell, and Símpson, JJ., 'concur.