Drum & Ezekiel v. Bryan

MAYFIELD, J. The original bill in this case was filed September 3, 1897. It sought, in the alternative: [396] (1) To set aside a foreclosure sale of a mortgage, and to be allowed to redeem; and (2) to cancel tbe foreclosure deed as.a cloud on complainant’s, title, on tbe ground that tbe mortgage debt was fully paid when tbe forclosure was bad. Tbe chancellor granted tbe relief prayed, and on appeal that decree was reversed, on the grounds that as a bill to set aside tbe foreclosure and to redeem it was filed too late, more than two years after tbe foreclosure, and that as a bill to- remove a cloud from title it failed to show that complainants were in possession when tbe bill was filed. See report of case and opinion, 40 South. 131, not officially reported. When tbe case went back, tbe bill was amended several times, by alleging that tbe complainants were in possession when tbe bill was filed, that tbe mortgage debt was tainted with usury, that tbe purchase price was grossly inadequate, that Drum & Ezekiel bad sold and conveyed tbe lands to Greil Bros., a corporation, and that Drum & Ezekiel bad no just interest in tbe land. Tbe respondents demurred, and answered tbe bill, denying each of tbe asserted equities of tbe bill. Tbe case was submitted on tbe pleadings and tbe proof, and tbe chancellor granted tbe relief on tbe theory that complainants have tbe right to redeem, but denied tbe relief as for canceling tbe deed as a cloud on title. Prom this decree tbe respondents prosecuted this appeal. (1) We agree with tbe chancellor that complainants must fail on tbe theory of tbe bill which seeks to have tbe foreclosure deed canceled as a cloud on complainant’s title. Tbe complainants did not have such possession as would support a bill for that purpose. (2) We cannot agree with tbe chancellor, however, that tbe complainants are entitled to relief under tbe [397] other theory of the bill, which seeks to have the foreclosure sale set aside, and to be allowed to redeem. As was ruled on the former appeal, the bill was filed more than two years after the foreclosure sale, and after the deed was executed to the purchaser, and after the purchaser had reconveyed to the mortgagee'. This recited the consideration paid, and the deed was. duly recorded, and the parties must have had notice of the inadequacy of the price bid. The chancellor finds that the mortgage debt was paid at the time of the foreclosure. If so, then there can be no redemption, and the only possible relief in chancery would be to have the deed canceled as a cloud on title; and as to this the chancellor finds that complainants were not in possession when the bill was filed, and therefore that they cannot have the deed canceled as a cloud on title. This was also the holding on the former appeal. (3) If the mortgage debt was paid in full when the foreclosure was had, then the sale was void, and the complainants could have recovered in an action at law. It was expressly ruled on the former appeal' in this case that if the mortgage debt was paid when the foreclosure sale was had, the complainant’s remedy was at law, provided they were not in possession; and we and the chancellor both found that they were not. Moreover, it appears that there has been one action of ejectment in this case, and that it resulted in favor of the respondents, appellants here. Anderson, C. J., and Sayre, Somerville, and Thomas JJ., concur. McClellan, J.,- does not concur in opinion. Gardner, J., not sitting.