Chenault v. Milan

87 So. 537, 205 Ala. 310, 1920 Ala. LEXIS 424

• Court: Supreme Court of Alabama
• Decided: November 25, 1920
• Docket: 8 Div. 243.
• Status: Published

Opinion

GARDNER, J.

This bill is filed by the mortgagor to have annulled a foreclosure sale of certain property, conveyed under mortgage which is made an exhibit to the bill, upon the ground of unfairness, oppression, and irregularity in the sale, and to be allowed the exercise of his equity of redemption. The equity of the bill was not questioned, and the answer contained but a mere general denial of the facts alleged in the bill.

[1] The mortgage attached to the bill, gave no authority to the mortgagee to purchase at his own sale, and the answer to the interrogatories, incorporated in the bill, disclosed that the respondent had become the purchaser at the foreclosure sale; that much of the property was not present at the time, some of which was in an adjoining county; and that all the property Was sold en masse for a lump sum. Under these circumstances the court properly set aside and annulled the foreclosure sale, and allowed the complainant to exercise his equity of redemption. Lovelace v. Hutchinson, 106 Ala. 417, 17 South. 623;. Thomas v. Jones, 84 Ala. 302, 4 South. 270; Canty v. Bixler, 185 Ala. 109, 64 South. 583; Johnson v. Selden, 140 Ala. 418, 37 South. 249, 103 Am. St. Rep. 49; Foster v. Goree, 5 Ala. 424; Harmon v. Dothan Bank, 186 Ala. 360, 64 South. 621.

[2] The action of the court in regard to the denial of the petition for a rehearing was a matter within the unrevisable discretion of the chancellor. Cox v. Brown, 198 Ala. 638, 73 South. 964; Ex parte Gresham, 82 Ala. 359, 2 South. 486.

[3] The decree of the court ordering the reference directed a statement of account between the complainant and respondent, to the end that the complainant be charged with the amount of the mortgage indebtedness, with interest thereon, and the respondent be charged ■ with the reasonable value of the property received and disposed of by him. The respondent attempted to offer proof concerning many matters of indebtedness and set-off before the register on this refefence, and filed numerous exceptions to the disallowance thereof; but, these not being matters embraced within the order of reference, the register was entirely correct in the disallowance of such independent matters, which were not made an issue in the case. The respondent contented himself by way of answer with a mere general denial. The matters offered to be proven on the reference were such as were required to be brought forward as affirmative defenses in the answer, or in some instances by way of cross-bill; ■ by the answer filed they had not been made an issue in the case.

“It is said by Mr. Daniell to be ‘of great importance to the pleader, in preparing an answer, to bear in mind that, besides answering the plaintiff’s case as made by the bill, he should state to the court upon the answer all the circumstances of which the defendant intends to avail himself by way of defense; for a defendant ought to apprise the plaintiff by his answer of the nature of the case he intends to set up, and that,' too, in a clear, unambiguous manner; and, in strictness, he cannot avail himself of any matter of defense, which is not stated in his answer, even though it should appear in evidence.’ ” Robinson v. Moseley, 93 Ala. 70, 9 South. 372.

See, also, Noble v. Giliman, 136 Ala. 618, 33 South. 861; Cotton v. Scott, 97 Ala. 447, 12 South. 65; Tatum v. Yahn, 130 Ala. 575, 29 South. 201; Sims, Chan. Pr. '§ 489, and numerous authorities cited in the note.

While some of these independent matters were set up in the answer to the interrogatories, many of which were not responsive thereto, yet this was without effect upon the foregoing well-established rule as set forth in these authorities. We have carefully noted the cases cited by counsel for appellant in regard to the answer, to interrogatories, among them Sullivan v. L. & N. R. R. Co., 163 Ala. 125, 50 South. 941; but we find nothing in these cases which at all militates against the conclusion here reached.

It results that we find no error, and the decree appealed from will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.