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acquired the property about a year before. I gation and liability, as this court said in The contract with Wilkinson was made in the Connors-Weyman Case, supra, “it must 1921. Plaintiff had worked for Wilkinson be made to appear, either that he [defendabout three months. The crack in the top ant] was bound to do so by agreement with soil, which indicated danger, was observed, the contractor, or else that he had in fact if at all, on the day before the accident. assumed to do so with the knowledge of the Evidently defendant had not in the begin- contractor or his employees, and that they ning invited Wilkinson's employees into a had relied upon his doing so." Neither the dangerous place, and defendant was due the pleading nor the proof make a case under affirmative charge requested.

the rule just quoted. The pleading cannot [8] We find in appellee's brief the sugges- be so construed because it alleges no such tion by way of tentative alternative, that facts, and defendant attempted to set up this the return of Wilkinson's employees on Tues- lack of averment, but was unable to make day to the place of the accident might have its objection available for the reason that been found by the jury sufficient to bring plaintiff had astutely avoided an allegation plaintiff's case within the rule which re- that plaintiff's employer was an independquires the owner to warn invitees when com- ent contractor. As for the proof we can ing upon his premises of dangers known to find, as the court in the Connors-Weyman him, or which he ought to know, of which Case could find, no such retention of charge they are unaware. This suggestion does not or control, nor was there any such arrangeseem to be very seriously urged, but, in any ment between defendant and its contractor event, we are unable to see merit in it. In as gave the employees of the latter any asthe interim between Thursday and Tuesday surance that the former would protect them Wilkinson's employees had by him been mov- against the negligence of the contractor or ed to another part of the pit. On Tuesday his employees. As for the rest, we may they were sent back to the place of the ac- paraphrase the language employed by the cident because at that place they could more court in the Connors-Weyman Case--a case expeditiously scrape up the clay which de- much stronger for the complaining employee fendant was insistently demanding for its than this—by saying that evidence which mud mill. There was no change of control went to show that, in his general oversight or possession. Work had merely been shift- of defendant's plant and operation, defended from one part of the pit to another. To ant's safety engineer looked over the minrequire a new examination of the premises ing operations carried on by Wilkinson, and, by the owner on the occasion of every such according to the tendency of plaintiff's teschange would in effect place upon him the timony, observed the dangerous condition of burden of constant supervision, would break the bank of clay. These facts, though found down the lawful arrangement into which he by the jury, are wholly insufficient to warhad entered with the independent contractor, rant a finding that defendant did in fact would attach to such arrangement duties and undertake to make and keep the operation liabilities which have not heretofore been of the clay pit, or any part of it, safe for recognized by the courts.

Wilkinson's employees, or that they relied, [9, 10] Appellee's final effort to avoid the or had any reason to rely, upon such an unconclusion stated is made to rest upon his dertaking. As in that case again the most contention that he does not proceed as for the evidence can be said to show is a hunegligence in defendant's failure to provide manitarian, but purely gratuitous, interest a reasonably safe place, but claims compen- in their safety, and a willingness to consation because defendant's safety engineer, serve it against such abuses as their engihaving observed the crack in the top soil neer might chance to observe. which portended danger, and, knowing plain Our opinion is that the judgment should tiff's ignorance of such danger, failed to be reversed and the cause remanded for a warn plaintiff. The effort is to fasten upon judgment in accord with what we have said, defendant a duty in addition to that implied Reversed and remanded. by law as between the owner defendant and the employees of the independent contrac ANDERSON, C. J., and GARDNER and tor, and, to bring about that status of obli- MILLER, JJ., concur.

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plainant alleged that after the filing of the VINES v. WILCUTT et al. (6 Div. 161.) original bill he learned that one S. N. Morris

was advertising with a view of foreclosing (Supreme Court of Alabama. Oct. 16, 1924.

a mortgage executed by the respondents J. Rehearing Denied Nov. 20, 1924.)

W. Wilcutt and wife in 1907, which was some On Rehearing.

years prior to complainant's mortgage, and I. Marshaling assets and securities - which embraced lands also included in the Junior mortgagee, having notice and failing to mortgage to complainant. assert his equities before complete sale of The bill as amended shows a foreclosure premises by senior mortgagee, not entitled of the said S. N. Morris mortgage, but Morris to remedy.

was not sought to be mađe a party respondJunior mortgagee, having notice but per- ent to the bill until some time after the foremitting senior mortgagee in regular manner to closure sale had been completed. The amendexercise power of sale contained in his mort-ed bill contains averments attacking the gage, waives his equities, and cannot have such sale set aside and invoke remedy of mar- validity of the Morris mortgage, and also sbaling assets.

seeking to establish against Morris an equi

table estoppel; but these features of the 2. Mortgages 336–Senior mortgagee exer. amended bill are confessedly without support

cising power of sale not required to protect in the evidence, and may be laid out of view. rights of junior mortgagee.

Morris was made a party respondent by this No obligation rests upon senior mortgagee amendment, and after the demurrer was overexercising power of sale to protect equitable rights of junior mortgagee if not claimed or as ruled, answered the bill. serted, except those of infants and others sui The cause was submitted for final decree juris.

on pleadings and proof, resulting in a decree 3. Mortgages Ew378 – Sale under power by dismissing the bill; from which decree the senior mortgagee binds junior mortgagee as complainant has prosecuted this appeal. though made party to foreclosure suit.

The mortgage of S. N. Morris was duly reSale by senior mortgagee under power in corded and has preference over that of commortgage, where no fraud or inequitable con- plainant, that it was duly foreclosed under duct is charged against him, binds a junior the power of sale contained therein, at which mortgagee, as though latter had been made a sale the said Morris (as fully authorized by party to foreclosure suit followed by decree and the mortgage) became the purchaser, and sale.

that this foreclosure was had and fully com

pleted prior to the time of the filing of the Appeal from Circuit Court, Walker Coun- 'amended bill seeking to have said Morris ty; Ernest Lacy, Judge.

made a party respondent, is all established Bill in equity by Latt V. Vines against J. without conflict. The mortgage to S. N. MorW. Wilcutt and others to foreclose a mort- ris embraced other lands not included in the gage, etc. From a decree denying relief, com- mortgage to complainant. plainant appeals. Affirmed.

The question of paramount importance preA. F. Fite, of Jasper, and Pinkney Scott, sented on this appeal relates to the insistence of Bessemer, for appellant.

of counsel for appellant to the effect that W. C. Davis and Curtis, Pennington & Pou, the complainant had a right as junior mortall of Jasper, for appellees.

gagee to exercise the equity of redemption

notwithstanding the foreclosure under the GARDNER, J.

The original bill in this power of sale in the Morris mortgage, and cause was filed by the appellant against the this is sought to be done by offering to pay respondent J. W. Wilcutt and his wife, Mary the debt due Morris under his mortgage less Wilcutt, seeking a correction of description the value of the land embraced in the Morris as to 40 acres of land embraced in a mort- mortgage and not included in that to comgage executed by respondents to complainant, plainant. and a foreclosure of the mortgage as thus As opposed to this contention, it is urged corrected. In the amendment to the bill, that even in the exercise of the equity of rehowever, it was alleged that this particular demption complainant should offer to pay the 40 was not owned by the mortgagors at the whole debt, and, failing to do so, the bill is time of the execution of the mortgage to the without equity (27 Cyc. 1826; Francis v. complainant, and therefore was not subject White, 166 Ala. 409, 52 So. 349); but we do to the lien of said mortgage. In view of this not reach a consideration of that question. amendment, therefore, that feature of the We are of the opinion that the foreclosure bill seeking a correction of this description sale under the power contained in the mortmay be laid out of view, for, very clearly, the gage cut off this equity of redemption and complainant can take nothing by the failure left remaining only the statutory right. It is of the court to enter a decree correcting the to be observed that no effort is here made to description of this particular 40.

exercise the statutory right of redemption, By another amendment to the bill the com-J and counsel for appellant rest their case up

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on the right to exercise the equity of redemp

On Rehearing. tion, as previously stated. They rely upon

GARDNER, J. Counsel for appellant upthe language of this court in Wiley Banks v.

on this application for rehearing strenuously Ewing, 47 Ala. 418, to the effect that where a senior mortgage had been foreclosed under inal opinion are not in point, for the reason

insist that the authorities noted in the origjudicial proceedings, and the junior mortgagee had not been made a party thereto, he is that in those cases the mortgages involved not barred of the right to redeem. See, also, instant case appellant's mortgage included

embrace the same property, while in the note to Jones v. Williams, 36 L. R. A (N. S.) only 160 acres of the 320 acres in the senior 426 (155 N. C. 179, 71 S. E. 222). The Wiley

mortgage. Appellant seeks to invoke the Banks Case, supra, is not here in point. Here, there was a regular sale under the which is well recognized by the authorities.

equitable principle of marshaling assets, power contained in the mortgage, and the

3 Pomeroy's Eq. Jur. 88 1224–1226; 3 Jones following language of this court in Powers v. Andrews, 84 Ala. 289, 4 So. 263, finds full ap- & Bldg. Ass'n v. Kent, 117 Ala. 624, 23 So.

on Mortgages, 88 1620-1622; Farmers' Sav. plication:

757; Prickett v. Sibert, 75 Ala. 315; In. "But this sale under the power as effectually terstate Land Co. v Logan, 196 Ala. 196, 72 cut off this equity of redemption, and destroyed So. 36; Threefoot Bros. v Hillman, 130 Ala. all rights incident to it, as if there had been 244, 30 So. 513, 89 Am. St. Rep 39; Pitts a strict foreclosure by judicial procedure in a court of chancery, and the junior mortgagee v. Am. Freehold L. & M. Co., 123 Ala. 469, had been made a party to it. When a regular | 26 So. 286. sale is made under a power contained in the

In Farmers' Sav. & Bldg. Ass'n v. Kent, instrument, not only the mortgagor, but all supra, is the following quotation from persons claiming any interest in the equity of Pomeroy, Eq. Jur.: redemption by privity of estate with him, are

“Whenever the mortgagor has conveyed sepconsidered as parties to the proceeding, and are precluded by it as fully as if they had been arate parcels of the mortgaged premises by made parties defendant by regular subpæna in warranty deed to successive grantees, and there an ordinary foreclosure suit

are no special provisions in any of their deeds,

Childress v. Monette, 54 Ala 317. The sale, in other words, with the mortgagor which disturb the equities

and no other dealings between themselves or destroys the equity of redemption, and in this otherwise existing, a priority results, dependstate transmutes it into a naked statutory right ing upon the order of conveyance. As between of redemption, limited to two years, with new incidents, privileges and liabilities, which are in his hands, if any, is primarily liable for the

the mortgagor and all the grantees, the parcel particularly set forth in the statute.”

whole mortgage debt, and should be exhausted

before having recourse to any of theirs; as The foregoing language has found repeated between the grantees, their parcels are liable approval in subsequent decisions. Aiken v. in the inverse order of their alienation, and Bridgford, 4 So. 266, 84 Ala. 295; Hunter v.

any parcels chargeable first in order must be Mellen, 127 Ala. 343, 28 So. 468; Allison v. exhausted before recourse is had to the secCody, 206 Ala, 88, 89 So 238; Jackson v. ond.” Tribble, 156 Ala. 480, 47 So. 310. To use the language of Hunter v. Mellen, supra:

In section 1620 of Jones on Mortgages,

supra, the author states : "The foreclosure proceedings being regular, the sale under the power contained in the mort

“When the mortgagor has made successive

sales of distinct parcels of the mortgaged land gage is equivalent to a strict foreclosure by a court of equity."

to different persons by warranty deeds, it is

generally regarded as only equitable that the The case of Pitts v. F. L Mortgage Co., foreclose his mortgage, should be required to

mortgagee, when he afterwards proceeds to 157 Ala. 56, 47 So. 242, cited by counsel for sell in the first place such part, if any, as the appellant, was for the purpose of disaffirming mortgagor still retains, and then the parts and setting aside a foreclosure sale to the that have been sold in the same subdivisions, end that the equity of redemption might be beginning with the parcel last sold by the exercised, and is therefore without influence mortgagor." upon the instant case.

And in section 1621 is the further stateHere, the foreclosure sale was regular and

ment; stands unimpeached, and the complainant seeks to exercise the equity of redemption

"These equitable considerations have led to notwithstanding the sale was under the pow. such case shall sell the mortgaged land in the

the adoption of the rule that the mortgagee in er contained in the mortgage, and effectually inverse order of its alienation by the mortgacut off and barred the equity of redemption. gor; and it will be seen by the cases cited that

The bill as amended seeking that relief this rule has been generally adopted." ; was without equity, and properly dismissed. Let the decree be affirmed.

And in the following section (1622) it ap Affirmed.

pears that this rule has been generally held

to apply to subsequent mortgages of the ANDERSON, C. J., and SAYRE and MILL-equity of redemption as well as to absolute ER, JJ., concur.

conveyances of it. The foregoing authorities

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(102 So.) from our own state disclose that this equi- , that under such circumstances the senior table principle has been given free applica- mortgagee is restricted in the exercise of tion.

the power of sale conferred in the mortgage, [1] We still entertain the view, however, so as to assert for the junior mortgagee his that appellant cannot now obtain the benefit equities of exoneration. In many of our of this principle. The facts as here dis- cases in the assertion of this equitable right closed must be borne in mind-the mortgage by the junior incumbrancer, the forecloser of the respondent was a senior mortgage, of of the mortgage has been restrained pending which complainant as junior incumbrancer the litigation. Howser v. Cruikshank, 122 had full notice. It was properly and validly Ala, 256, 25 So. 206, 82 Am. St. Rep. 76; foreclosed. Of this the junior incumbrancer Farmers' Sav. & Bldg. Ass'n v. Kent, 131 Ala. was aware, but took no steps to intervene, 246, 30 SO. 874; Interstate Land Co. v. Logan, and asked the aid of a court of equity in supra marshaling the assets, in order that that In Pitts v. Am. Freehold L. & M. Co., portion of the land embraced in his mort. 157 Ala. 56, 47 So. 242, in the original opingage might be exonerated either wholly or ion as reported on first appeal (123 Ala. 469, in part. He permitted the foreclosure to 26 So. 286), the mortgagee purchased at the be fully executed, and seeks now to exercise sale without authority, and the foreclosure the equity of redemption, ignoring entirely was sought to be avoided and the equity of the valid foreclosure of the mortgage. His redemption asserted. insistence is the mortgagee owed an abso

In Threefoot Bros. v, Hillman, supra, the lute duty in executing the power of sale to foreclosure sale was attacked as fraudulent sell first the land not embraced in the junior and thus sought to be avoided to exercise mortgage, and the failure to observe this the equity of redemption. absolute duty renders the sale voidable.

Here, the complainant seeks to avoid the There is no fraud or inequitable conduct foreclosure sale upon the sole ground that charged to the senior mortgagee. His fore- the mortgagee did not so conduct the sale closure was valid, and is here not assailed ; as to assert for the junior incumbrancer his but the argument is that, because he knew equitable rights. We are cited to no authorof the existence of the junior mortgage, his ity in this state holding voidable a sale upon foreclosure proceedings must be conducted this ground, and, indeed, those cases cited by so as to protect the rights of the junior in- counsel for appellant in other jurisdictions cumbrancer. In discussing this question, are not persuasive. The case of George v. Mr. Pomeroy, in his work on Equity Juris- Wood, 11 Allen (93 Mass.) 41, rests upon a prudence, at section 1226, supra, said:

statutory provision of that state, and the “Although the equities between the subse- opinion expressly states that the suit was quent owners of various parcels of the mort- brought "before the right of redemption exgaged premises, whether equal or unequal, do pired.” As explanatory of its statutory sysnot prevent the mortgagee from enforcing the item concerning foreclosures in the state of mortgage security, if necessary, against all Massachusetts, we take the following from these parcels, yet after the mortgagee has received notice of the subsequent conveyance, the case of Dooley v. Potter, 140 Mass. 49, the equities affect him to such an extent that 2 N. E. 935: he cannot deal with the whole premises, or with "The foreclosure and redemption of mortgaany parcel thereof, or with the owner of any ges are regulated by statute. Foreclosure is parcel, by release or agreement, so as to dis- worked by three years' possession for the purturb the equities subsisting among the vari- pose of foreclosure, and the possession for ous owners, or to destroy their rights of pre- that purpose may be attained—not to notice the cedence in the order of liability, or to defeat exceptional cases in which a bill in equity to their rights of ratable contribution, or of com- | foreclose will lie—by a writ of entry, or by enplete or partial exoneration.”

try in pais. Each is a statutory proceeding for

obtaining possession for foreclosure. Under a This principle was recognized in the re writ of entry, the amount due on the mortgage cent case of Grace v. Montgomery, 209 Ala. is ascertained by the court, and the judgment 386, 96 So. 430, wherein it was held that is conditional, that, if the amount is not paid the rights of a junior mortgagee for the within a certain time, the plaintiff shall have exercise of the equities of redemption con

possession. After possession obtained in eiveyed to him by virtue of his mortgage, and for three years, and, if it is not exercised with

ther mode, the right of redemption continues of which the senior mortgagee had notice, in that time, the foreclosure becomes absolute. cannot be affected by any private arrange- It may be that possession acquired by action ment or agreement by the mortgagor and the is, under the statute, as conclusive upon every senior mortgagee.

right of redemption as possession acquired by Here, there is no question of release or entry in pais." private agreement between the mortgagor and senior mortgagee involved, but only the The case of Green v. Dixon, 9 Wis. 532, ralid exercise of the power of sale conferred is merely to the effect that the foreclosure of in the mortgage. We have found no au the mortgage by bill in equity, in which suit thority in this state, which holds to the view the plaintiff was not made a party, the

equity of redemption was not cut off, the, by a failure to assert them. This is necescourt saying:

sarily true under our decisions giving effect “The equity of redemption was conveyed to to the execution of a power of sale in a her by the deed from Ring and wife, and it has mortgage as shown in Powers v. Andrews, never been foreclosed."


A valid exercise of this power of

sale effectually cuts off the equity of reIn this respect the case is similar to that demption, and destroys all rights incident of Wiley Banks v. Ewing, citing in the opin- to it, as if there had been a strict foreclosure ion.

and the junior mortgagee made a party In De Haven v. Musselman, 123 Ind. 62, thereto. When a regular sale is made un24 N. E. 171, speaking to a question similar der the power, the mortgagor and all perto that here involved, the court said:

sons claiming any interest in the equity "At the time of the foreclosure proceedings of redemption by privity of estate with him appellant knew all the facts. She could have are considered as parties to the proceeding, protected her rights in that action, and re- and are precluded by it, as fully as if they quired the one-half of the real estate sold to had been made parties defendant in an orNice to be first sold to satisfy the balance of dinary foreclosure suit. As pointed out in the mortgage debt, but she failed to do so, the original opinion, the language of Pow. and the whole tract was ordered sold, and she waived her right to have the portion sold to

ers v. Andrews, supra, has been frequently Nice first sold; and the proceeds applied to the approved in subsequent decisions. payment of the debt."

It follows therefore that the foreclosure,

as was originally held, cut off the equity Indeed, the question in this case is wheth- of redemption, leaving only the statutory er the junior incumbrancer must first as right of redemption which is not sought to be sert his rights or merely stand by and re- here exercised. We have reached the conquire the senior mortgagee to assert them clusion, upon a reconsideration of this for him. We are fully persuaded that the cause, that the original opinion should stand, junior incumbrancer must assert his own and the application for rehearing should be equities. This seems to be fully sustained overruled. by what was said in Prickett v. Sibert, 75

Application overruled. Ala, 315, as follows:

“The general rule is indisputable, that if lands are subject to mortgage, or to the lien of the vendor for the payment of the purchase

DECATUR FERTILIZER CO. V. WALLS. money, or to other paramount incumbrance, and are sold successively in different parcels to

(8 Div. 667.) different persons, a court of equity, in decree

Oct. 16, 1924. ing a sale of them for the satisfaction of the (Supreme Court of Alabama.

Rehearing Denied Nov. 27, 1924.) mortgage, or the lien of the vendor, or in charging them with the incumbrance, will pur-1, Agriculture Cm7-Evidence fertilizer was sue the inverse order of alienation, first, how not tagged when received admissible to prove ever, charging such of the lands as the vendee

lack of tags on delivery to carrier. may retain, if he retains a part of parcel.

In action on note given for fertilizer, which * This is an equity of the several pur- was carried by one continuous route by boat, chasers, and must be claimed and asserted by where plaintiff's evidence tended to show each them. If not claimed and asserted, it is not sack was tagged, in compliance with Gen. Acts obligated upon the court, unless the rights of 1911, p. 365, Code 1907, § 24 et seq., Gen. Acts infants, or others not sui juris are involved, 1919, p. 184, evidence showing that sacks had to mould its decrees so that the equity will be

no tags when delivered at defendant's landing enforced."

was admissible to dispute plaintiff's evidence. It was held that the several equities of the 2. Agriculture Ow7–Testimony fertilizer sold purchasers must be claimed and asserted by defendant was not tagged admissible to by them, and that no obligation rests upon prove lack of tags when delivered to defend. the courts to so protect their rights if not

ant by carrier. so claimed and asserted, excepting, of course,

In action on note given for fertilizer, in the rights of infants or others not sui juris. which there was some evidence that såcks were [2] Certainly, if the courts are under no

not tagged, in compliance with Gen, Acts 1911,

p. 365, Code 1907, § 24. et seq., Gen. Acts obligation to assert and claim the equities 1919, p. 184, when delivered to carrier, testiof the subsequent purchaser, the senior in- mony of purchasers from defendant, that sacks cumbrancer should likewise be under no were not tagged when bought by them, was such obligation.

admissible to corroborate defendant's testimony [3] Conceding, therefore, that the junior that they had no tags when delivered to him. incumbrancer could have enforced his equi

3. Agriculture 7-Admitting testimony, ferties and required a marshaling of assets tilizer bought from defendant had no tags, prior to the foreclosure, yet standing by without identifying it, held prejudicial error. and permitting the foreclosure to proceed In action on note to pay for fertilizer, where to its full completion, he has lost his rights I whether sacks were tagged, as required by

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