Henderson Law Co. v. Wilson

49 So. 845, 161 Ala. 504, 1909 Ala. LEXIS 157

• Court: Supreme Court of Alabama
• Decided: May 24, 1909
• Status: Published

Opinion

ANDERSON, J.

A court of equity has no jurisdiction to restrain or set aside a sale of mortgaged property, provided the mortgagee keeps within the terms of the power of sale and no case of fraud or oppression he shown. But if the power he attempted or exercised so as to pervert it from its legitimate purpose, and to use. it for the purpose of oppressing the debtor, or of enabling the creditor to acquire the property himself, a court of equity will enjoin the sale, or will set it aside afterwards. — 2 Jones on Mortgages, § 1801; Struve v. Childs, 63 Ala. 473; Vaughan v. Marable, 64 Ala. 60; Wittmeier v. Tidwell, 147 Ala. 354, 40 South. 963. Or if a sale is prematurely made — that is, before the same is authorized under the terms of the mortgage — it will be set aside.

The bill avers that this sale was procured by Henderson to appress and harass the complainant; but we need not rest the equity of the bill upon this averment, as we think it elsewhere shows that the foreclosure was premature, as it was made some months before the maturity of the debt. It is true the mortgage provides for a foreclosure after default, or before default in case the grantor disposes of or parts with the possession of the property. The mortgage also authorizes the mortgagee or assigns to take possession of the property, at any time before or after, etc., and to sell the same; but this does not authorize an arbitrary seizure and sale, and only means that they had the right to do so, before default, in case of a disposition or attempted disposal of the property. In other words, this clause was put there for protective, and not oppressive, purposes. If the debt was not due, and the mortgagor had not disposed of the property, and was not attempting to do so, it would be an unreasonable and unwarranted act for the mortgagee to seize and sell the property. This last clause must, therefore, be read in conjunction with the other two; for to read it in the alternative or disjunctive would render the first two useless and meaningless. If the last clause gave the mortgagee the right to seize and sell the property before the maturity of the debt, and whether the mortgagor was’ or was not disposing of the property, then it would have been useless to have inserted the first two clauses, as the mortgagee could do all of this under the last clause, and they should all, therefore, be read, in connection with each other. We cannot make a contract for the parties; bat we mast-give the one made a jnst and reasonable construction, and we think that the mortgage authorized a foreclosure only after default, except in case the mortgagor disposed of or parted with the possession of any of the property, or attempted to. do so, when the mortgagee could then take possession and sell before the law day of the mortgage or the maturity of the debt. The bill avers that the sale Aims 'made before default in the debt secured; and, while the averments are not very specific, it sufficiently negatives any attempt on the part of the defendant to dispose of the property or otherAvise impair the respondent’s security, and the chancellor did not err in overruling the demurrers to said bill.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.