Elrod v. Smith

DOWDELL, J. The bill in this case is by a junior mortgagee for redemption from a prior mortgage. It admits a foreclosure under power of sale contained in the senior mortgage, but it seeks to avoid the effect of the foreclosure and to have the same set aside and to let the complainant in to redeem upon the ground that the mortgagee, without the right to do so under the mortgage contract, became the purchaser at his own foreclosure sale. The bill also avers that “no proper notice of the sale was given.” This latter averment is not the equivalent of an averment of no notice for the lack of which the sale would be invalid.—Wood v. Lake, 62 Ala. 489; Sanders v. Askew, 79 Ala. 485. Such averment, without setting out facts as to the notice given, can be treated and considered as nothing more than a statement of the conclusion of the pleader, and for vagueness and indefiniteness in the statement of facts avoiding the sale, in this phase of the case, rendered the bill demurrable. Under the averment of an unauthorized purchase by the mortgagee* at his own sale, the right of the mortgagor and those holding in privity with him to disaf-firm such sale and be let in to redeem is undoubted. However this election to disaffirm must be seasonably expressed. The settled rule in this State, in ordinary cases, has fixed as a reasonable time, by analogy to the statute, two years. In the absence of special circumstances excusing the delay, a failure to act within that time bars the right, notwithstanding mere irregularities may have existed in the exercise of the power of sale.—Alexander v. Hill, 88 Ala. 488; Homer v. Sheehan, 74 Ala. 452; Ezzell v. Watson, 83 Ala. 120. [216] The bill was filed on tlie 7th 'day of March, 1899.. The date of the foreclosure is not definitely .stated. The allegation in this respect is: that the complainant made a tender and offer to redeem about the first of January, 1896, and that subsequent to said tender and offer to redeem, said Henry P. Smith attempted to foreclose said mortgage, etc. Under the familiar rule of construing the pleading most strongly against the pleader, this allegation will be taken to mean that the alleged foreclosure was had about the first of January, 1896, more than three years before the filing of the bill. The only excuse for delay in the exercise of the right to dis-affirm the sale, as shown by the bill, was that the complainant commenced his action in assumpsit against the mortgagor for the recovery of the mortgage debt and awaited the termination of such suit. The fact that the complainant was pursuing one of the several remedies he had against his mortgagor when he might have pursued all of 'his remedies concurrently, does not constitute such a special circumstance a® to excuse his delay, nor will it relieve him from the imputation of laches. The appeal in this case was taken on the 9th day of December, 1899, and was expressly limited to the decree on the demurrer. This the appellant unquestionably had the right to do. The bond for costs and the certificate of appeal are in all respects regular and free from any defect. There is nothing in the bond for costs or certificate of appeal upon which the appellee could have based any motion to dismiss. It is not a case that falls within the provisions of 'sections 470-471 of the Code, which provide for the amendment of appeals, bonds, and security for costs. There appear® in the 'record a second bond for costs and certificate of appeal, made on the 1st day of February, 1901, showing an appeal from the decree on the motion to dismiss the bill for want of equity, as well as on the demurrer, which was more than twelve months after the decree and after the original appeal taken in the case. This second hour] and certificate appear to have been filed in this court on the 4th day of February, 1901. It also appears from, the records of this court that on the 5th clay of Febru [217] •ary, 1901, leave was given appellant to file amended •certificate -of appeal. Under this general order of leave to file amended certificate of appeal it was not contemplated that such leave would extend to the right of enlarging the appeal so as to defeat the statute limiting the time within which appeals, must be taken. The right of appeal from the decree sustaining motion to dismiss the bill for want of equity, without a further order of dismissal of the bill, was barred by the statute after the lapse of thirty days. The operation of the ■statute cannot be evaded by the filing (if the additional bond and certificate, though offered.in the form of an amendment to the original appeal. As no appeal in the first instance was taken from the decree on the motion to dismiss the bill for want of equity, and as the right of such appeal was barred before the filing of the additional bond and certificate, the ruling of said court on the motion cannot he considered. The decree of the court below is affirmed.