Sollie v. Outlaw

SAYRE, J. On the former appeal in this cause (Sollie v. Outlaw, 204 Ala. 522, 86 South. 380) the brief for appellant sought a ruling on the question whether appellant was liable to account to appellees for the rents and profits of the land for the time which has elapsed since appellant took possession under her purchase at the foreclosure sale; but the court declined to rule upon that question for the reason that the averments of the bill failed to show that appellant had been in the reception of rents or profits. Upon the return of the cause to the trial court the bill was amended by the addition of paragraph 13, claiming rents and profits to the extent necessary to satisfy complainants’ lien, and now the question whether appellant should be held to account for rents and profits to the extent indicated is again presented for decision. The effect of the decision on the former appeal was, under the averments of the bill, to recognize the validity and priority of the Oates mortgage — this in pursuance of concession by appellees to that effect. Complainants (appellees) are therefore now to he treated as junior lienors, and, by virtue of defendant’s (appellant’s) purchase at the foreclosure sale, made, it is true, after the filing of the bill here, she stands in the place of an assignee of the senior mortgagee. There is no privity of contract between appellees and this appellant, and to the situation presented by the bill the authority of Kirksey v. Mitchell, 8 Ala. 407, is applicable by analogy. The status of a prior mortgagee in possession, after default, with tile consent of the mortgagor haring been conceded to appellant, the subject of the superior mortgage is the property of the mortgagee rather than of the complaining lienors and no reason appears why .the former should be required to account to the latter for rents and profits. And while appellees in their brief seem to prefer a claim,' not fox-rents and profits specifically, but for damages —that is, they say that their attorney ox-solicitor, who was fraudulently acting in the interest of his wife, appellant, wrongfully prevented them from obtaining satisfaction of tbe decree rendered in their favor in 1908, and so did drive them to file the present hill to enforce that decree, the xmlue of the land, which stands as security for the claims of the respective parties in the order of their preference, haviixg in the meantime so far decreased that, unless appellant is made to respond in damages, appellees must resort to an action at law, an alternative which should not be required of them by equity which delights to do justice, and not by halves — while this appears to be the result of the brief, thus inviting the court to take jurisdiction of an action purely in tort, which ordinarily it will not do, the averments of the amendment which brings the question here amount to nothing more nor less than a claim for rents and profits as such. For reasons already stated, our judgment is that appellees are not entitled to rents and profits. It results that the demurrer to so much of the amended bill as claims rents and profits should have been sustained. Reversed and remanded. ANDERSON, G. J., and GARDNER and MILLER, JJ., concur.