Dixon v. Hayes , 171 Ala. 498 ( 1911 )

McCLELLAN, J.

The bill seeks redemption from a prior, unforeclosed mortgage, and is exhibited by Dixon whose assertion of right to redeem rests upon his averred succession to the right (equity) passing to the purchaser at the foreclosure sale under the power of a second mortgage. The first mortgage, from which redemption is sought, appeal’s to have been executed June 27,1887. The second mortgage, to the foreclosure of which, by sale under the power, complainant would trace his rights in the premises, appears to have been executed July 9,1887. The law day of the latter (second) mortgage was January 9, 1888. The law day of the former (first) mortgage, if we correctly interpret its terms, was not later than six months after its date. The bill was filed May 14, 1907, upwards of 19 years after the law day of the elder mortgage. Upon submission, on pleading and proof, the chancellor dismissed the bill, as also the cross-bills. The appeal is by the original complainant alone.

The decree, as now assailed, must, we think, be affirmed. This conclusion might be justified upon other theories and findings; but those to be stated will suffice to determine the propriety of the dismissal of the bill entered below.

Where the mortgagee, after the law day of the mortgage, has been in possession of the subject for a period of 10 years, without an accounting for rents and profits, or other recognition of the equity of redemption remaining in the mortgagor, or in his privies, the right of the mortgagor, or of his privies, to redeem is finally barred.—Coyle v. Wilkins, 57 Ala. 108; McCoy v. Gentry, 73 Ala. 105; Richter v. Nall, 128 Ala. 198, 30 South. 140; Love v. Butler, 129 Ala. 531, 30 South. 735.

It satisfactorily appears from the voluminous evidence submitted that John and Jane Hayes, the alleged prior mortgagees, or their successors in granted right and title, had been, before this bill was filed, in, and exercising such-possession of the premises in question as effected to bar the right of redemption now sought to be enforced. So far as Kennedy (alleged mortgagor) is concerned, there can be no doubt, in the light of the evidence, that he was never in possession of the premises. Whatever the conveyance created by and between him and John and Jane Hayes, it is clear that they did not part with the possession of the premises. After amendment of the bill, this averment, referring to the Hayes possession, appears: “ * * * And that the possession of the said Dallas Kennedy forthwith [i. e., June 27, 1887] passed to the said Jane Hayes, and that she has ever since been in the actual possession of the said lands, or in the receipt of the rents and profits thereof, and hath ever since continued in such possession and receipt [amendment], but at all times in subordination to and recognition of the rights and obligations of the said Dallas Kennedy.”

The purpose of the amendment was, of course, to avoid the barring effect of the rule before stated. The added averment has no support in the evidence submitted to the chancellor. On the contrary, the evidence expressly refuted the averment. The allegation was essentially material, for, if not sustained, the bill, on its face, expressed in averment the bases of fact to which the rule above reiterated attached the law’s conclusion of complete bar, provided, of course, the law day of the (first) mortgage had affirmatively appeared in the bill. .The failure of proof in respect to the averment, added by way of amendment, required the dismissal of the bill.—Elyton Land Co. v. Iron City Bottling Works, 109 Ala. 602, 20 South. 51; A. F. L. M. Co. v. Sewell, 92 Ala. 163, 9 South. 143, 13 L. R. A. 299; Burroughs v. Burroughs, 164 Ala. 329, 50 South. 1025.

Solicitors for appellees pressed several other considererations, wherefrom, it is insisted, the correctness of the decree, as now asserted, must result. From the conclusions stated, it is not now necessary to pass upon them.

The decree, in the particular assailed on this appeal, is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.