Francis v. Sheats

McCLELLAN, J. — Assuming that some of the executions under which it is insisted appellant Francis, as purchaser at the sale, acquired the equity of redemption of Sheats in certain real estate, were valid, and another void, it cannot he held, with reference to this consideration only, that the sale was invalid and that no rights, passed to the purchaser thereat. The sale was had under four executions; but it by no means resulted that the sale was such an entirety as that the voidness of one of the executions invalidated the sale. The rule is well declared in DeLoaoh v. Robbins, 102 Ala. 296, whether dictum or not, that in such cases the purchaser acquires title and that the sale is not a nullity. This principle is supported in reason and by many respectable authorities, and affirmed by eminent text-writers, among them Freeman on Executions, § 325, and citations in note. Hence the phases of the bill resting on the allegation of invalidity of the sale because one of the executions on which it was had was void are untenable; and, as far as the stated allegation is concerned, the sale invested appellant with the title to the intestate’s equity of redemption as sold. Consequently the sale was not void, but irregular and voidable, if defective at all, on seasonable application. Conceding that the facts averred in the bill make a' case of a voidable sale, the question then arises whether, on a bill the paramount purpose of which is to redeem from an alleged.mortgage, a merely voidable sale under — 473 — execution may be set aside as an incident to the superior purpose of redemption? This court, in the case of Waldrop v. Friedman, 90 Ala. 157, 7 South. 510, 24 Am. St. Rep. 775, has expressly, decided that under such circumstances a collateral attack on the execution sale is attempted, and that that is not allowable. This rule must always be distinguished from that permitting the bill to redeem to include the setting aside of an absolutely void execution sale, whether such invalidity results from an underlying void judgment or from the execution itself. The case of Lyon v. Dees, 101 Ala. 700, 14 South. 564, pertains to the latter rule, and in no wise conflicts with the announcement made in Waldrop v. Friedman, supra. The case of Lockett v. Hurt was on bill filed to cancel a sheriffs deed because of. irregularities in the execution sale in a cause wherein the purchaser was one Hurt, Avho was also the party from whom redemption Avas sought and Avhose fraud in the sale Avas the iirvalidating circumstance. It is obvious that this case does not militate against the soundness of the rule in this connection first declared. In short, the principle is that, Avhere the sale is entirely void, it may be incidentally in a proper case assailed and set aside on a bill •to redeem; hut if the sale is only irregular and seasonably voidable, the party complaining must either make his motion in the court whence the enforcing process emanates to vacate the sale, or else by original bill in equity seek the vacation thereof. The reasons for these distinctions between the íavo remedies, and controlling their respective propriety, are clearly stated in Anniston Pipe Works v. Williams, 106 Ala. 324, 18 South. 111, 54 Am. St. Rep. 51. One phase of the bill involves the character of title or right acquired by Francis under his purchase at the execution sale. It is insisted, in line with this theory of — 474 — the bill, upon the authority of Griggs v. Banks, 59 Ala. 311, that in so purchasing Francis, then occupying the relation of mortgagee to Sheats as his mortgagor in the property in which Sheats’ equity of redemption was sold at the execution sale, merely removed a prior incumbrance on the premises, and held and now holds them in trust for the mortgagor, or his privies, without having acquired any superior or adverse right to him or them on redemption. If we understand the Griggs-Banks Case, Banks-became, before the sheriff’s sale thereunder, the owner of a judgment of Holmes and Goldthwaite, the first lien on the land on which the defendant therein (Gilmer) had executed several mortgages to secure an indebtedness to Banks. The judgment so acquired by Banks was enforced by a sale of the property, and Banks became the purchaser. Mrs. Griggs, who had a lien on the property, resultant from a judgment in her favor in an action commenced by levying a writ of attachment subordinate to Banks’ acquired right under the Holmes judgment and to his several mortgages, filed her bill to redeem and asserted her right to effect redemption by paying the sum bid by Banks at the execution sale. It appears, then, that Banks purchased a prior incumbrance to his mortgage on the lands involved ; and on this status this court, through Brickell, C. J., said that “the appellee Banks, a mortgagee, had a clear legal right to disengage the premises from the prior, incumbrance created by the levy of attachment. * * * His own safety and the security of his debt, the full and free operation of the title the mortgages conveyed, would be thereby increased. A mortgagee, though clothed with the legal title, is in a large sense a trustee for the mortgagor. The only effect of his removal of prior incumbrances on the mortgaged premises is that he holds them in trust for the mortgagor, without ac — 475 — quiring thereby any right superior or adverse to that of the mortgagor, when he comes to redeem. [Italics supplied] . Without compensation to the mortgagee, he will not be permitted to redeem. "* * * Cullum v. Erwin, 4 Ala. 460. * * * Or if it was an equity of redemption, and he discharged, as he had the legal right to do, the mortgage, his right to reimbursement as a lawful charge would be undoubted.” Under this authority, earnestly pressed upon our attention, the principle deducible is that a mortgagee will be held a trustee for the redeeming mortgagor, or his privy in right, when the removed incumbrance on the subject of the mortgage is prior thereto, and when on redemption the duty rests upon the proposed redemptioner to reimburse the mortgagee for his outlay in removing the prior incumbrance. It is not decided in the quoted case that, in the purchase by a mortgagee of the equity of redemption, he thereby becomes a trustee for the mortgagor to whom, on redemption, reimbursement must be made, nor that by so purchasing the mortgagee acquires no right or title antagonistic to that of the mortgagor. To so hold would repudiate the settled doctrine that a mortgagee may buy, either directly from the mortgagor or at execution sale, the equity of redemption, and thereby secure an indefeasible title to the real estate, subject, in the latter case, to statutory redemption, provided the transaction or purchase is free from fraud or other vitiating circumstances. — 1 Jones on Mortgages, § 711. Besides, it is so evident as to only need mention that the equity of redemption so purchased is not an incumbrance which on redemption is a lawful charge, the payment of which to reimburse is a condition of redemption. It is the title itself, as far as the proposed redemptioner is concerned. Such being the rule, it is plain that the principle announced in Griggs — 476 — v. Banks, supra, lias no application in this instance, and for the obvious reason, if not others, that if the mortgagee (Francis) acquired at the sale, without fraud, oppression, or other invalidating action, Sheats’ equity of redemption, his title was in fee, and not subject to defeasance. Assuming, without affirming it, that Brock was a junior mortgagee within the terms of the redemption statute (Code 1896, § 3505), and as such effected statutory redemption from the purchaser at the' foreclosure sale under the Sheats-Scott mortgage, we are of the opinion, and so hold, that the legal and only effect, of that redemption was to invest Brock with the indefeasible legal title to the property. In the case of Owen v. Kilpatrick, 96 Ala. 421, 11 South. 476, this court points out some of the distinctions made in these redemption statutes, and construes some of the provisions therein contained, among them that no privilege is thereby accorded any member of the classes mentioned in the statute to redeem from one of that or another class, except with respect to judgment creditors in the manner following.” Section 3506 fixes the duty of surrender of possession. Section 3507, made available to the junior mortgagee, among-others named, by the use of the term “in manner-following,” provides for the payment or tender of the purchase money and interest thereon and lawful charges, and that “such payment or tender has the effect to reinvest him with the title.” And section 3508 creates a special and speedy remedy upon the conditions there stated, for the recovery of the possession of the land. Notwithstanding some of the terms used in these statutes appear inapt in application to other classes of redemptioners, yet it is evident that the purpose and intent was and is as stated. Such being the result of Brock’s redemption, assuming that he had the right as a — 477 — junior mortgagee so to do, Francis was a purchaser from Brock, both of whom were, by the foreclosure, bereft of any relation to Sheats, since he (Sheats) Avas by that foreclosure denuded of any interest or right in the property save the unavailed of privilege of statutory redemption. Furthermore, if Francis’ mortgage from Sheats was executed subsequent to the foreclosure of the Scott mortgage, no relation of mortgagor and mortgagee ever existed, uiider Sheats’ mortgage to Francis, because Sheats Avas deprived by the foreclosure of any right or interest in the property Avhich he could convey by mortgage to Francis. After Brock’s redemption from the purchaser, Sheats himself had, as said, no statute-conferred privilege, or right otherwise, to redeem from Brock. — Owen v. Kilpatrick, supra. It follows, in this aspect of the bill, that Sheats’ heirs cannot redeem from Francis, Avho holds the property under an independent title and right, unless vitiated by some conduct or act of Francis of Avhich Ave are unacquainted by this bill. We cannot concur in the view that the pronounced effort of the administrator to redeem under the statute had the effect to deny to the heirs the right to assert, if so entitled, the equity of redemption passing to them upon the death of the intestate. We are, of course, mindful of the right of the personal representative to subject the lands of a decedent to the payment of debts against the estate, and any affirmative and effective act to that end on his part Avill suffice. But that principle is in no wise infracted when it is held that the heir may, where Avarranted, pursue his remedy to effectuate redemption under an equity descending to him, notAvithstanding the administrator has begun his efforts to accomplish statutory redemption. The attempt at statutory redemption is in no sense an effective and affirmative act looking to the payment of the debts of the estate, though — 478 — such may he the ultimate purpose. If effectuated, it but reinvests the title to the land in the heir, not the personal representative, which, to be appropriated to the payment of the debts, must in the manner provided be subjected thereto. It would, indeed, be a strange departure from established principles to permit the vested interest of an heir in real estate to be divested or rendered nugatory by the ex parte act of the personal representative. This can be done only after the heir has had his day in court. There is no merit in the insistence that the doctrine of estoppel binds Francis in respect of the lands in which he was to join as grantor Avith Sheats. Even a grantee Avho takes under a deed poll is not so bound.— Coopcr v. Watson, 73 Ala. 252. We deem it unnecessary, in view of the conclusions announced, to treat other possible questions raised by •the demurrer. It results that the demurrers to the bill, rested on the principles discussed, were Avell taken, and should have been sustained. The decree Avill therefore be reversed, and one here rendered sustaining them. Reversed and rendered. Tyson, C. J., and Haralson, Dowdell, Simpson, and Anderson, JJ., concur.