McHan v. Ordway, Dudley & McGuire

STONE, C. J. — -If the complainants have shown any right to recover the land sued for, it may be conceded they could come into equity, and have their title perfected. Purchasing, as they did, at their own sale, they did not, by such purchase, acquire any legal title beyond what they held under their mortgage. True, they were bound by their purchase, and could not, by any proceeding instituted by them, be heard to disaffirm it. They bound themselves, but did not bind the mortgagor, if he seasonably moved to have the sale disaffirmed, and to be let in to redeem.— Garland v. Watson, 74 Ala. 323. It may also be couceded, that Conant had slumbered too long, to be allowed to disaffirm and redeem. Still, complainants are without a perfect title; and, as we have said, if there is no other obstacle in the [350] way, they may come into equity, and have all the equities of Conant converted into a legal title in them ; and, inasmuch as they are the actors praying relief, it was their privilege, if not their duty, to offer to the mortgagor the option of having the lands resold.' — McLean v. Presley, 56 Ala. 211; McGehee v. Lehman, 65 Ala. 316; Yarborough v. Avant, 66 Ala. 526 ; Harris v. Miller, 71 Ala. 26. In February, 1878, Conant, by mortgage, conveyed the lands in controversy to complainants, as security for the payment of his note under seal, for the sum of twelve hundred and seventy dollars. McHan, after the mortgage sale, being in possession of the lands, was sued by complainants for their recovery, in a statutory real action. There was verdict and judgment for defendant. One verdict and judgment, in such action, are not conclusive. — Code of 1876, § 2969 ; Jones v. DeGraffenreid, 60 Ala. 145. The present bill was filed by Ordway, Dudley and McGuire, who had failed in the ejectment suit, and Conant and McHan were made defendants. The bill avers that, when the mortgage was made, Conant ivas in possession of the lands. It then avers that the lands had belonged to McHan, but that before the mortgage was made, Conant and McHan had exchanged lands, and Conant had become the owner of the lands in suit, in exchange for. other lands which had previously belonged to him ; and that he, Conant, had at least acquired “a perfect equity; the said James McHan, to whom they previously belonged, having received a full, valuable, adequate, and all the consideration for the same agreed upon between him and the said Conant.” The bill then charges, “ that at the time of the exchange of lands between the said Conant and McHan, as above set forth, and previous to the execution of said mortgage of date 13th February, 1878, the said McHan had made a deed to said Conant, to the said lands embraced in the said mortgage, conveying to him the full legal title, and at the same time the said Conant conveyed by deed to McHan the lands near Huntsville, which he had previously owned ; . . . that since the execution of said mortgage by the said Conant to complainants, the defendants have fraudulently cancelled the trade which they had previously made by an exchange of lands, and have fraudulently withheld said deeds from record, which they had executed the one to the other in said exchange of lands, and now have said deeds in their possession, or under their control, or have destroyed the same, and, by such false and fraudulent conduct, are trying to defeat complainants from recovering the possession of said lands.” We have now copied all of said bill, material to the question we propose to. consider. The allegations of fraud are wholly insufficient'. — Flewellen v. Crane, 58 Ala. 627 ; Pickett v. Pipkin, 64 Ala. 520. The [351] facts should have been averred, constituting the fraud ; enough facts to show a case of fraud against some right of complainant, set forth in the pleadings. It is not averred nor shown that McHan, before the alleged re-exchan.ge and suppression or cancellation of the deeds, had notice, actual or constructive, of the mortgage to complainants. And, if this be not the particular ground of fraud invoked, no other requisite facts are set forth, —such as, that the re-exchange was simulated, and the mortgage property held by McHan in secret trust for Conant. The bill, in other respects, is subject to criticism. , The note and mortgage are averred to be given to secure thirteen hundred and seventy dollars. The exhibits show them to be for twelve hundred and seventy dollars. The bill, in une place, avers that Conant’s title was a “ perfect equity.” If this be so, then complainants were without remedy as to any part of their claim, save in equity. In another place, it is averred that Conant had a legal title. These apparently repugnant averments ought to be so modified, as to leave them in harmony. It is possible the bill can be so amended as to give it equity, and, to that end, we will leave it for the chancellor to pass on any motion to amend the complainants may make. In cases circumstanced as this is, we deem it the better practice to make no order of dismissal in this court. Reversed and remanded.