Citation Numbers： 181 Ala. 263, 61 So. 804
Judges： Dowdell, McClellan, Sittting
Filed Date： 4/23/1913
Status： Precedential
Modified Date： 7/27/2022
Prior to February 19, 1906, C. W. Presnall (complainant) had executed to E. H. Bixler two mortgages — one to secure a note for $700 and one for $800. Real and personal property Avas covered by them; the real property being that here involved. On that date by agreement with Presnall, upon the payment of $1,500 to Bixler, Burgess & Co., had'those mortgages transferred to them. On that date (though acknowledged the next day) Presnall executed a mortgage for $1,500 to Burgess & Go. In this instrument it is recited in referring to the note due November 1, 1906, it Avas given to secure: “For the sum of $1,500.00, advanced and delivered to me in supplies of provisions, .cash, material, etc., to enable me to make a crop of cotton,” etc. Further on it is also recited therein: “The fee-simple title to the said described property’ and the said paragraph should read as follows: ‘The fee-simple title to said described property is vested absolutely in me and I hereby warrant that there is no prior mort
In the process of foreclosing the two Bixler mortgages, of which they were the transferees, and the $1,500 mortgage executed to them by Presnall, Burgess & Co. gave notice that sales for that purpose would be had on March 22, 1909. On March 12, 1909, the original bill in this cause was filed by Presnall against the firm of Burgess & Co. It exhibited therewith in copy the three mortgages mentioned and the notice of their foreclosure under the power of sale in each provided. The more material averments are these: That the transfer of the Bixler mortgages as described was effected by agreement of the complainant and respondents and Bixler; that respondents honored complainant’s draft, for the $1,500, consideration of the transfer; that complainant executed to respondents the mortgage of February 19, 1906, which was intended as additional security for
The special prayer is for an accounting to ascertain the indebtedness betAveen the parties, and that upon payment of complainant the mortgages be surrendered and canceled. It was also prayed that a temporary injunction issue restraining the foreclosure of the mortgages, and upon final hearing that the injunction be made permanent. There is a prayer for general relief.
It is alleged that on the occasion of the sighing of the letter the respondents rendered complainant a statement of his account to that date, to the correctness of which he agreed, Avherein the net indebtedness stated in that letter Avas shoAvn as the result from itemized debits and credits. It is also averred in this paragraph: “Under the facts aforesaid, the defendant is advised and claims that the balance of the proceeds of the sale of said mortgage property over and above the indebtedness, secured, according to the terms of the mortgage, as Avritten upon the face thereof, and the costs and expenses, of the sale, and the said tax Avhich the defendant had á right to pay to protect his interest in said mortgage' and the rights of subrogation thereto was by said agreement of the defendant authorized to be deducted from the proceeds of said sale, and that there was out of said proceeds only the sum of $3.65 which the defendant did not have the right, either by the terms of said mortgage, the right of subrogation or said agreement to de
Subsequently, on August 29, 1910, the original bill was amended by the addition thereto of paragraph 9, which reads: “Complainant respectfully shows unto your honor that he has lived upon and occupied as his homestead for practically all of his life the land described in Exhibit C to the bill of complaint filed in this cause. That he was married on March 26, 1907, and he and his wife have resided upon and occupied as their homestead said land ever since their marriage. He has resided upon and occupied as his homestead, and will claim as exempt to him as such homestead, all the land described in said Exhibit C as being in section 10, T. 8 R. 4, E.; also the S. W. •% of S. W. % and 12% acres, the exact description of which he is not able to give at this time, but which is in the south part of the N. W. % of S. W: % of section 11, T. 8, R. 4, E., in Clarke county, Ala.” The folloAving admission, signed by the solicitors for respondents, Avas filed in the cause August 31, 1910: “Defendants agree that on the trial of the above-entitled cause they Avill admit that C. W. Presnail lived with his wife on the land described in the bill of complainant on February 14, 1908; that
After restating in the answer to the amended bill the substance of the admission quoted, it is averred in this answer: “But defendants deny that the complainant has any homestead rights in this land, and deny that complainant has any right to claim said lands or any part thereof as exempt to him. The respondents pray that this answer may be taken as an amendment of its answer and cross-bill heretofore filed in this cause, and be made a part of their cross-bill.”
That the original bill possessed equity as a bill to redeem is clear we think; and, under this theory, the ascertainment of the true amount of the indebtedness was an essential element of the relief the bill so sought.— 2 Jones on Mort. § 1094; 17 Ency. Pl. & Pr. p. 964; Smith v. Conner, 65 Ala. 371; Higman v. Humes, 133 Ala. 617, 32 South. 574. But while the bill was pending the foreclosure sale under the power Avas effected; the temporary writ of injunction, to restrain that action pendente lite, not having issued because of the failure of the complainant to make the bond prescribed in the fiat.
Where the bill does not shoAV that the entire amount for Avhich the mortgage affords security has been paid or tendered, the pendency of the cause to redeem will not suspend the right to exercise the power of sale vested by the mortgage in the mortgagee, his successors or assigns, notwithstanding the bill offers to do equity by satisfying the ascertained sum secured by the mortgage. —2 Jones on Mort. § 1906, pp. 863, 864; Stevens v.
The power of sale in a mortgage is a power coupled with an interest — that cannot be revoked or suspended at the will of the mortgagor without the consent of the party secured. — Bergen v. Bennett, 1 Caines, Cas. (N. Y.) 1, 2 Am. Dec. 281; Code, § 4896; 27 Cyc. pp. 1452, 1453; Tarver v. Haines, 55 Ala. 503; 2 Perry on Trusts, 602h.
The foreclosure under the power of sale of the mortgages confessedly not wholly satisfied, and full tender not having been made to that end, was valid, passing the unqualified title, though effected after the bill to redeem was filed. These mortgages were executed by the complainant before his marriage; and hence bore the full security the land afforded, free from the charge or claim of homestead exemptions. The subsequent marriage of complainant could not impair that security in value or character in any degree. — McGill v. Hughes, 84 Ark. 238, 105 S. W. 255.
The letter of February 14, 1908; was an unequivocal admission, not only of an indebtedness -secured by the mortgage, but of a specified amount; and upon the faith of that adjustment forbearance was accorded him by the respondents. There is no impeachment of the binding quality of this adjustment of the account between the -parties. No vitiating fraud or mistake is shown by the preponderance of the evidence, if it had been sufficiently averred in the pleading. Such an adjustment Avill not be reopened except for fraud or mistake. — Ga. Home Ins. Co. v. Warten, 113 Ala. 479, 22 South. 288, 58 Am. St. Rep. 129; Sloan v. Guice, 77 Ala.
The amount for which the property was sold at the foreclosure sale Avas the sum agreed to in the letter of February 14, 1908, with interest and costs incurred in effecting the power of sale in the mortgages.
Pretermitting consideration of the equitable set-off in the cross-bill, Ave see no ground on which to base a finding of error in the decree appealed from. It is affirmed.
Affirmed.