Aiken v. Bridgeford & Co.

84 Ala. 295

• Court: Supreme Court of Alabama
• Decided: December 15, 1887
• Status: Published

Opinion

SOMERVILLE, J.

In the case of Powers v. Andrews, decided at the present term, 84 Ala. 289, we held that, under our statute regulating the redemption of real estate sold under execution, decree, mortgage, or deed of trust (Code, 1886, §§ 1879-1891) an assignee or junior mortgagee of the equity of redemption of a prior mortgagor, was not entitled to exercise the statutory right of redemption, after a regular foreclosure of the mortgage under a power of sale contained in the instrument had taken place; nor after foreclosure by a court of chancery, except where such mortgagee had not been made a party to the proceeding, in which case he might redeem at any time within five years. — Code, 1886, § 2616. The principle settled there requires the reversal of the chancellor’s decree in this case.

But independent of that view of the case, there is another which leads to the same result.

The present bill was filed by the appellee more than two years after the foreclosure of the deed of trust by Aiken under the power of sale contained in the instrument, and this was a bar of the right to redeem, admitting such a right to exist in a junior mortgagee, after foreclosure of a prior mortgage.

The statute allows the mortgagor, as debtor, the right to redeem -at any time within two years after such sale under the power. — Code, 1886, § 1879. It is axiomatic that he can not transfer to another any greater or more extensive right than what he may himself possess. Hence no assignee, or junior mortgagee, of his could have more than the two years within which to exercise this right, even were these classes construed to come within the statute, which, as we have said above, is not so.

The effect of a regular foreclosure under a power of sale is equivalent to a strict foreclosure by a court of equity in a pro-' ceeding, to which the mortgagor, and those claiming by privity of title 'under him, 'were made parties. It cuts off the equity of redemption, not only as existing in the mortgagor, but also in any assignee holding under him, and reduces it to a statutory right. — Childress v. Monette, 54 Ala. 317. As said in Powers v. Andrews, present term, supra: “ When a regular sale is made under a power contained in the instrument, not only the mortgagor, but all persons claiming any interest in the equity of redemption by a privity of estate with him, are considered as parties to the proceeding, and are precluded by it as fully as if they had been made parties defendant by regular subpoena in an ordinary foreclosure suit.” “ The sale in other words,” it is added, “ destroys the equity of redemption, and, in this State, transmutes it into a naked statutory rigid of redemption limited to two years, with new incidents, privileges and liabilities, which are particularly set forth in the statute.”

The complainants were not entitled to redeem in any aspect of the case, and the chancellor erred in so holding.

The decree is reversed, and a decree will be rendered in this court, dismissing the complainant’s bill, at their costs, in this court and in the court below.