Sanders v. Askew

79 Ala. 433

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

STONE, O. J.

The mortgage in this case was executed in 1871. Taking the averments of the amended bill most strongly against the pleader, they must be interpreted as an admission by Sanders that Askew Brothers sold the land under the mortgage, January 1st, 1874, and became purchasers at their own sale. They immediately took possession, and have held possession ever since. It is averred in the bill that, on two or three occasions, after January, 1874, one of the Askew brothers admitted that the account growing out of the mortgage was unsettled, and expressed a willingness to have the account overhauled, and a proper settlement made. The latest time this agreement is alleged to have been expressed was in the spring of 1876. The original bill in this case was filed in November, 1883 — nine years and ten months after the sale under the mortgage, and seven and a half years after the last agreement to come to a settlement is alleged to have been made by Askew. Now, if we concede to this alleged agreement the effect of keeping the mortgage account open, up to the last time it was expressed — April, 1876 — the present suit, as a bill to redeem, comes too late, if there is no other infirmity in the sale than the fact that the mortgagees purchased at their own sale. Robinson v. Cullom, 41 Ala. 693; Childress v. Monette, 54 Ala. 317; Harris v. Miller, 71 Ala. 26; Cooper v. Hornsby, Ib. 65; Comer v. Sheehan, 74 Ala. 452. So, if the mortgage sale under the power was in all things regular, save the one pointed out, it must be declared that it has become valid and binding by lapse of time.

The bill avers, however', that there was no notice given of the time and place of sale, in either of the modes required by the mortgage. If this be true, the sale was void, and did not change the relation of the parties as mortgagor and mortgagee. Wood v. Lake, 62 Ala. 489. Ten years is the limitation within which a mortgagor out of possession may be let in to redeem ; and according to the averments of the bill, Sanders had not been ten years out of possession when the bill was filed. The demurrer to the amended bill ought to have been overruled.

If, as the bill avers, Askew Brothers sold and took possession of land not embraced in their mortgage, they were trespassers, and could have been evicted in a court of law. Chancery can give no relief on this ground.

Reversed and remanded.