Kelly v. Longshore

STONE, C. J. After Levi Longshore mortgaged his lands to Lehman, Durr & Go., there remained in him only an equity of redemption. That mortgage was made February 25th, 1880. [205] Such equity of redemption was liable to the said Levi’s debts, so long as it remained in him. It was subject to seizure and sale under execution at law, and a purchaser at such sale would have acquired all the right and interest which were in Levi Longshore at the ti'me the lien attached. But Longshore’s interest being an equity, the purchaser would have acquired only such legal title as he had, if he had any, and -the equity of redemption. — Code of 1876, § 3209; You v. Flinn, 34 Ala. 415 ; Childress v. Monette, 54 Ala. 317; Atchison v. Broadhead, 56 Ala. 414. If Kelly had pursued this course, his purchase would have put him in the shoes of Levi Longshoi’e ; he would have then owned the equity of redemption. That would have clothed him with the right to redeem from the mortgagee, to the same extent, and on the same conditions, as Longshore could have redeemed. Either, in oi’der to i’edeem, must pay or tender the moi’tgage indebtedness. This right the law x’eserves to the mortgagor, unless it is waived or lost by some act or laches of his; and the execution purchaser succeeds to this right, and to nothing more. It would be an anomaly, if such purchaser could acquire greater rights by such purchase, than the execution debtor owned. Of coui'se, we ai’e considering eases, like the present, where no fraud is imputed. — Jones on Mortgages, §§ 1055, 1061, 1069 ; 3 Pom. Eq. § 1220, and note 1, p. 209 ; Rogers v. Torbut, 58 Ala. 523 ; Grigg v. Banks, 59 Ala. 311; Smith v. Conner, 65 Ala. 371 ; Dozier v. Mitchell, 1 b. 511; Garland v. Watson, 74 Ala. 323. So, Kelly, having acquired a lien on the equity of redemption, was himself authorized to redeem from Lehman, Durr & Co. or their assignee, and then foreclose, for the payment of the mortgage debt, thus made his own, and for the payment of his unsatisfied judgment. In what we have said above, wé have considered only the rights of the original parties to the transaction, without any inference to sales or transfers alleged to have been made by Levi Longshore of his equity of redemption. Considering the case in that light alone, the bill is without equity. It proceeds on the theory, that the lands are more than sufficient to pay the unpaid balance of the mortgage debt, and it seeks to have the mortgage foreclosed, the lands sold, and the balance, after satisfying the mortgage, applied to the extinguishment of complainant’s judgment. The complainant is in no condition to px-ay for such relief. He claims no interest in the mortgage made to Lehman, Durr & Co., has no right to control it, and can not compel them nor their assignee to foreclose it. We have shown above what his rights are. The bill in this case ■ makes no charge of fraud or bad faith [206] in any one. It seeks to sell the land — four hundred and seventy acres — and, of the proceeds, to pay the balance'due on the mortgage, and complainant’s judgment. No semblance of right is shown to subject the lands brought by Massengale. They were sold and conveyed to him long before Kelly recovered his judgment, and no fraud is alleged or shown. The bill does not seek to condemn, the unpaid purchase-money due from Massengale, even if that could be done .in such a suit as this. Nor is there any ground shown for disturbing Dean’s first purchase.- The lands in section five, and in the south-east quarter of section six, must be eliminated from this contention.* The several purchasers of'those .parcels have a good title, so far as this record discloses. The south-west quarter of section six — • the Smith place — is differently situated. The only paper evidence, devesting the equity of redemption in this tract out of Levi Longshore, is his deed po Dean bearing date March 16th, 1882.- Long before that time complainant had acquired a lien, by having execution on his judgment placed in the hands of the sheriff. The alleged sale from Levi to A. P. Longshore, if made as alleged, was attended with no visible change of possession or dominion, and furnished no evidence,, either actual or constructive, that the right had passd out of Levi Long-shore. — Wade orí Notice, § 302; McCarthy v. Nicrosi, 72 Ala. 332. A sale made at that time under that execution' would have cohveyed all' the title, except the .mortgage interest. Preston v. McMillan, 58 Ala. 84. Whether that lien still exists we will not. now consider. The bill is without equity. * Affirmed.