Opinion
4 Div. 45.
March 24, 1927.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
Mulkey Mulkey, of Geneva, for appellant.
The bill was fatally defective in not alleging that the complainant delivered possession of the land after foreclosure, or offering some excuse therefor. Code 1923, § 10143; Nelms v. Kennon, 88 Ala. 329, 6 So. 744. There are no facts alleged in the bill which would justify or authorize the court to hold the case for the purposes stated in the decree. When the equity of the bill fails, the court will not hold the case to award damages recoverable at law. Farmers' Bank v. Murphree, 200 Ala. 574, 76 So. 932. Faulk had the right to sell the land, no lis pendens notice having been given, and for so doing he cannot be held to account, and the rights of bona fide purchasers are not affected. Thomas v. Blair, 208 Ala. 48, 93 So. 704.
Carmichael Tiller, of Geneva, for appellee.
The bill sufficiently excuses failure to deliver possession, but the right of the wife to redeem would not be forfeited, even if demand for possession had been made upon her, and she had failed to surrender the lands to the purchaser. Thomas v. Blair, 208 Ala. 48, 93 So. 704; McDuffie v. Faulk, 214 Ala. 221, 107 So. 61; Johnson v. Williams, 212 Ala. 319, 102 So. 527. It was not necessary for complainant to make tender to Faulk before filing her bill; demand for statement was made upon Faulk, and he failed or refused to comply with such demand. An offer to pay all lawful charges, made in the bill, was sufficient. Slaughter v. Webb, 205 Ala. 334, 87 So. 854. Waiver of right to redeem by the mortgagor does not affect the right of the wife. Thomas v. Blair, supra. The equity of the bill did not fail; complainant having filed her bill to redeem within the time required. Though the purchasers had a right to be perfected, the bill was properly retained for an accounting against Faulk. Van Heuvel v. Long, 200 Ala. 27, 75 So. 339; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084. Code 1923, § 6878, was not intended to protect the purchaser at foreclosure sale, but bona fide purchasers from said purchaser.
The bill is by a wife for the redemption of land from a mortgage sale against the husband; her only interest therein being as wife.
The wife's right of redemption from the husband's mortgage is not affected by the question of possession or the surrender thereof to purchaser at mortgage sale and not subject to the forfeiture provided in the statute. Code 1907, § 5747; Code 1923, § 10143; Johnson v. Williams, 212 Ala. 319, 102 So. 527; Thomas v. Blair, 208 Ala. 48, 93 So. 704; Stringer v. Kelly, 212 Ala. 565, 103 So. 650; McDuffie v. Faulk, 214 Ala. 221, 107 So. 61. The case of Nelms v. Kennon, 88 Ala. 329, 6 So. 744, is not in point. At the time that bill was filed complainant, his brother, and sisters composed the family resident thereon who he left in the premises in hostility to the purchaser at mortgage sale. Moreover, at that time, the statute did not give the wife the right of redemption.
The wife made demand of Faulk for statement of all lawful charges necessary to payment and redemption without suit in equity, and there was failure or refusal to comply. The wife may therefore file her bill, without making tender, offering and averring her ability to pay the debt and all lawful charges. Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Gay v. Taylor, 214 Ala. 659, 108 So. 853. A waiver or forfeiture or estoppel of the right of redemption by the mortgagor, without more does not bind the wife who in good faith asserts her statutory right.
In Farmers' Sav. Bank v. Murphree, 200 Ala. 574, 576, 76 So. 932, 934, the mortgagee had transferred a part of a series of notes secured by mortgage; that transferee foreclosed, and the mortgagee filed the bill against the bank, seeking to set aside the foreclosure and for resale; held:
"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."
In the instant bill there was sufficient pleading and proof to support statutory redemption from Faulk. The analogy is that of Van Heuvel v. Long, 200 Ala. 27, 75 So. 339; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084, where some of the land had been sold by the vendee or mortgagee, and the recovery in equity of the equitable right of the mortgagor to redeem has been defeated, was upheld for the "proceeds of the sale," or for the "value of the land" at his election. Here there was no error in ordering a reference between complainant and the said Faulk, as was decreed. Said defendant was not protected by section 6878 of the Code. Its object was notice to the persons who were bona fide purchasers from the purchaser at the foreclosure sale, not the purchaser at foreclosure and party to the suit for redemption.
We may say further, in passing, the court rendered the decree after seeing and hearing the witnesses, and was in a better position to pass upon the testimony. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Ray v. Watkins, 203 Ala. 683, 85 So. 25.
The decree of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.