Summary
stating that "[e]quity does not set aside foreclosure sales merely for trifling irregularities in notice or procedure, which do not appear capable of prejudice to the mortgagor, or those claiming under him"
Summary of this case from Gilroy v. RybergOpinion
6 Div. 553.
November 15, 1917.
Appeal from Chancery Court, Blount County; A. H. Benners, Chancellor.
Russell Johnson, of Oneonta, for appellant. Ward Weaver, of Oneonta, for appellee.
By his transfer of one of the mortgage notes to appellant bank the mortgagee, Murphree, not only gave to it priority in its satisfaction out of the mortgage security, but he also armed the transferee with the right and power to proceed to a foreclosure of the mortgage, pursuant to its powers, for such satisfaction. Brewer v. Atkeison, 121 Ala. 410, 413, 25 So. 992, 77 Am. St. Rep. 64; Cullum v. Erwin, 4 Ala. 452.
The decree of the chancellor does not indicate upon what ground appellant's foreclosure sale was held as invalid and set aside. Equity does not set aside foreclosure sales merely for trifling irregularities in notice or procedure, which do not appear capable of prejudice to the mortgagor, or those claiming under him.
This sale was made for cash, and, conceding that the notice omitted to specify that the land would be sold for cash, this was incapable of prejudice either to the mortgagor or the mortgagee, so far as here appears. A sale, unless otherwise stipulated, is always intended to be for cash. But in any case it is fully settled by our decisions, since the extension of credit to the purchaser rather tends to increase the number of bidders and enthance the price, that even a sale on credit, though expressly authorized for cash, is no ground for setting aside the sale. Mahone v. Williams, 39 Ala. 202, 215; Mewburn's Heirs v. Bass, 82 Ala. 622, 2 So. 520. A fortiori the ambiguity of this notice in this regard is not a cause for the invalidation of the sale.
The evidence fairly and satisfactorily shows that a certain crossroads where there was a store, and formerly a post office, and a scattering community, was known and designated as "Joy." Having agreed upon such a place, whether it be a crossroads or an entire precinct, neither party can complain of its indefiniteness or uncertainty of location. This objection is wholly without merit. It is, of course, not necessary to post a notice of sale in the precinct or locality where the land is situated, or where the parties reside, unless the mortgage so requires. Notices were posted by the bank in two public places in the county, and this was all that was required by the mortgage.
The fact that the bank failed to pay over to Murphree the surplus proceeds of the sale has no bearing upon the validity of the sale, and is not a ground for its impeachment.
We think the foreclosure sale was clearly valid. As to the surplus proceeds, Murphree's rights are those of a junior mortgagee. For its recovery an action of assumpsit lies; and this remedy being plain and adequate, no resort to a court of equity is necessary. Webster v. Singley, 53 Ala. 208, 25 Am.Rep. 609; 27 Cyc. 1499, d.
There are no allegations in the bill to support the granting of relief by way of statutory redemption from the foreclosure sale, and hence the prayer for redemption is nugatory. The equity of the bill failing under the proof, it will not be retained for the mere collection of the surplus due to complainant, for which he has an adequate remedy at law.
It results that the decree of the chancery court must be reversed, and a decree will be here rendered denying the relief prayed for, and dismissing the bill of complaint.
Reversed and rendered.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.