Bond v. Oates , 204 Ala. 666 ( 1920 )

The appellant filed this bill against appellee, seeking to assert and effect the equity of redemption created by a mortgage executed in the year 1909 by appellant to appellee's father, William C. Oates, Sr., who died in 1910, to secure an indebtedness of $16,000. Incidental to this paramount object of the bill, temporary injunction was prayed and was issued to restrain the appellee from foreclosing the mortgage under the power of sale provided therein. On motion of appellee (Code, § 4535), the injunction was dissolved, and this appeal presents that action for review.

Several years after this mortgage was executed to appellee's testator, Gen. Oates, the appellant, gave the American Agricultural Chemical Company a second mortgage on the property described in the Oates mortgage. Prior to the filing of this bill the mortgage to the chemical company was foreclosed by decree, the chemical company purchasing at the sale. This foreclosure effected to divest appellant, mortgagor to Oates, of all interest in or title to the land described in the mortgage to Oates, including appellant's equity of redemption resulting from the mortgage to Oates. Sibley v. Linton Coal Co., 193 Ala. 182, 184, 185, 69 So. 1; Arnold v. Black,87 So. 170.¹ The appellant had two years in which to exercise his right of statutory redemption (Code, § 5746) from the decretal foreclosure of the chemical company mortgage. This he did not do.

According to appellant's affidavit, with the exhibit to be quoted, the property was purchased by appellant's wife, no redemption being contemplated or accomplished. The exhibit reads:

"T. J. Bond and Della L. Bond agrees that she shall buy all land at Newville, Alabama owned by American Agricultural Chemical Company and sold by them under my mortgage to them in chancery court at $22,000, and T. J. Bond shall have three years to redeem said lands from her and pay her what money she is out. If he pays her the money in three years, the land is to be his. T. J. Bond pays said Della L. Bond $100 for this right to pay her what money she pays for the land in three years, and she is to make T. J. Bond a deed to all the land she buys from American Agricultural Chemical Company and in my mortgage to them, and the consideration is $100 and the money she is out for this contract."

The effect of this agreement was to invest appellant, as between himself and his wife alone, with the contractual right to purchase the property from her on the terms stipulated. If it should be assumed that a perfected purchase of the property by the appellant from his wife would operate to invest him with such interest in or title to the land as to establish or re-establish in him the equity of redemption that was divested by the foreclosure under decree of the chemical company mortgage, it is not claimed or shown that appellant has availed of or accomplished the purchase of the property under the quoted agreement with his wife. This contract with his wife did not invest appellant with any interest in or lien upon the land. In the case of Cardwell v. Virginia Ins. Co., 186 Ala. 261,65 So. 80, the complainant was held to be a junior mortgagee, and hence was declared to be entitled to redeem under the equity of redemption resulting from the senior mortgage to the mortgage company, assigned by it to the insurance company. This appellant is not a junior mortgagee. He only has a contract to purchase the land on terms stipulated in the instrument. The appellant, complainant, is therefore without right to redeem in virtue of the equity of redemption resulting from the mortgage to Oates. The action of the court in dissolving the temporary injunction was well taken.

There are other considerations set up in the pleadings and supported in the affidavits that might lead to the like conclusion on this appeal. In view of the stated conclusion, viz. that there is no equity in the bill, it is not necessary to review those matters or to determine their merit.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

¹ Ante, p. 632.