Bowdoin v. Bedsole ( 1917 )

ANDERSON, C. J.

(1-3) We concur with the chancery court in the holding that the appellant did not make a tender of the mortgage debt before the sale, under the power, so as to give him the right to set the same aside. Therefore the equity of his cross-bill must hinge upon his right to redeem, and which he cannot now exercise after a sale, under the power in the mortgage, if the requirements of the mortgage were complied with in reference to said sale. The regularity of the sale does not seem to be questioned except for the failure of the mortgagee to first take possession of the property and have it on exhibition at the time of the sale. In the first place, we doubt if the mortgage required a seizure as a condition precedent to the sale, but think that the mortgagee was given an option in the matter.—Jones v. Hagler, 95 Ala. 529, 10 South. 345. Apart, however; from such a requirement in the mortgage, the law contemplates that in sales of personal property under mortgage the property should be present; otherwise it could not be expected to bring its fair value.—Foster v. Goree, 5 Ala. 424. The failure, however, to produce the property can be expressly waived by the mortgagor or impliedly so by withholding the possession, or it may be that the production is not practicable or possible. In the case at bar the mortgagee reduced to possession, before the sale, some of the property, and we cannot say that the sale should be vitiated as to the other as it was retained by the mortgagor, and the ungathered crop could not be reduced to possession at the time and produced for inspection.

We do not think that the chancery court committed reversible error in its rulings, either upon the original , or cross-bill and the decree must be affirmed.

Affirmed.

Mayfield, Somerville, and Thomas, JJ., concur.