Greer v. Watson , 170 Ala. 334 ( 1911 )

DOWDELL, C. J.

There can be no question of the right of a subvendee to maintain a bill in equity to correct a mistake in the description of land made in the conveyance by the first grantor.—Weathers v. Hill, 92 Ala. 492, 9 South. 412; Tillis v. Smith, 108 Ala. 267, 19 South. 374. This principal applies also to a purchaser at foreclosure sale under power in the mortgage.-Lester v. Johnston, 137 Ala. 194, 33 South. 880; Jones v. McNeally, 139 Ala. 379, 35 Suth. 1022, 101 Am. St. Rep. 38; Greene v. Dickson, 119 Ala. 346, 24 South. 422, 72 Am. St. Rep. 920.

Although the hill shows that the purchase price hid at the foreclosure sale has not been paid, it avers an ability and readiness on the part of the complainant to pay, and a willingness on the part of the mortgagee to accept payment, and to do all in his power to correct the mistake complained of and to perfect the sale. In other words, the mortgagee makes no objection to the delay in the payment of the purchase price bid at the foreclosure sale by the complainant until the alleged error in description can be corrected. Deferring of the payment of the purchase price bid until the mistake in the mortgage as to the description is corrected is a matter between the mortgagee and the purchaser, and of which the mortgagor has no right to complain. This is settled in principle in the cases of Mewburn’s Heirs v. Bass, 82 Ala. 622, 2 South. 520; Cooper v. Hornsby, 71 Ala. 62, and Durden v. Whetstone, 92 Ala. 480, 9 South. 176. The facts in this case differentiate it from the case of Adkins v. Tutwiler, 98 Ala. 129, 11 South. 640, cited by counsel for appellant. In the last-mentioned case the controversy was between the mortgagee and the purchaser at the foreclosure sale.

The bill was not open to the demurrer filed, and the decree of the chancellor overruling same will be affirmed.

Affirmed.

Simpson, Mayfield, and McClellan, JJ., concur.