Opinion
4 Div. 169.
April 10, 1941. Rehearing Denied May 22, 1941.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
L. A. Farmer, of Dothan, for appellant.
Appellant demanded a trial by jury, and an order certifying the issues of fact to the circuit court at law was made. But the court of equity thereafter rendered its final decree without reference to said order. This was error. 21 C.J. 599; Brown v. Cranberry Iron Co., 4 Cir., 72 F. 103, 18 C.C.A. 462; Code 1923, §§ 9908, 8597. There was no claim made by respondent for an attorney's fee for collection of the note involved. There was an attempted foreclosure of the mortgage after the bill was filed, and any attorney's fee for same was included in the amount bid at the sale. The note was not collected and fee for collection of note was an improper charge. Tompkins v. Drennen, 95 Ala. 463, 10 So. 638; Perry v. Seals, 186 Ala. 514, 65 So. 151; Bedell v. New Eng. Mtg. Sec. Co., 91 Ala. 325, 8 So. 494. The mortgage is silent as the place and terms of sale and character of notice to be given. There is no legal evidence that appellee complied with the statute, Code 1923, § 9011, except the recitals of the foreclosure deed which are not prima facie evidence. Fellows v. Burkett, 219 Ala. 601, 122 So. 808; Ritter v. Moseley, 226 Ala. 648, 148 So. 143. The foreclosure deed was not made in accordance with the mortgage or statute. Ritter v. Moseley, supra. The foreclosure deed being a nullity, and nothing appearing in the record to show the mortgage was legally foreclosed, the decree of July 5, 1940, holding appellee entitled to possession, was erroneous. After said decree, and within ten days, an appeal was taken by appellant. Notwithstanding said appeal, the register issued the writ of possession under which appellant was evicted. Everything done after the appeal was taken was void. An order withholding the writ of possession until the appeal was disposed of should have been made, failing which the trial court erred. Motion to dismiss appeal, having been made after submission, cannot be considered. Twinn Tree Lbr. Co. v. Day, 181 Ala. 565, 61 So. 914. All of assignments of error on this appeal must be considered, although some of the questions were considered on former appeal. Code, § 10287.
N. Frank Pridgen and Martin Jackson, all of Dothan, for appellee.
The decree is not one from which a married woman may appeal without giving security for costs under Code 1923, § 6183. Cobb v. Reed Phosphate Co., 220 Ala. 55, 124 So. 94; Pritchett v. Wilson, 239 Ala. 146, 194 So. 176. No question as to trial by jury was raised in the court below, and the question was not raised on former appeal. The question was therefore waived. Haigler v. Goldsmith, 168 Ala. 669, 52 So. 736; Gen. Const. Co. v. Ross, 226 Ala. 51, 145 So. 314; Life Cas. Ins. Co. v. Womack, 26 Ala. App. 6, 151 So. 881. Appellant's contentions with reference to the amount fixed for redemption were all answered on former appeal.
Appellee's mortgages were dated prior to the effective date of the Code of 1923, hence the requirements of § 9011 did not apply. But appellee did comply strictly with that statute in foreclosing. Execution of a foreclosure deed is not essential to put legal title in the mortgagee; he already holds title under the mortgage itself. Jackson v. Tribble, 156 Ala. 480, 47 So. 310; Biggers v. Ingersoll, 236 Ala. 646, 184 So. 478; Crabtree v. Prince, 212 Ala. 387, 102 So. 605. The mortgage was legally foreclosed, and the foreclosure deed, though not an absolute necessity to vest legal title, is good. The mortgagee had title and had a foreclosure after law day. The lower court, therefore, properly confirmed and ratified the foreclosure, and when appellant failed to redeem within the time fixed by the decree, she lost her right of redemption. Grooms v. Brown-Marx Co., 239 Ala. 284, 195 So. 215.
This case was here on former appeal. 239 Ala. 678, 195 So. 889.
After an affirmance on that appeal, there was another decree in the circuit court, in equity, dated July 5, 1940, from which the present appeal was attempted. In that decree, the court recited the fact that a decree was entered on July 11, 1939, sustaining the validity of the mortgage under attack, but holding that complainant had the right to enforce the equity of redemption, and ordered a reference for the purpose of ascertaining the balance due under the mortgage. That on September 29, 1939, a decree was made and entered confirming the register's report, fixing the amount of the mortgage debt and attorney's fee, and allowed complainant ninety days in which to pay the amount necessary for a redemption. That on December 29, 1939, the register reported that payment had not been made as authorized. That thereupon an appeal was taken to this Court by complainant from those several decrees; that the decrees were affirmed in this Court May 9, 1940, and application for a rehearing denied June 27, 1940.
Said decree of July 5, 1940, from which this appeal is attempted, then declared that subsequent to the filing of the original bill, and on September 8, 1937, respondent foreclosed the mortgage involved. This we presume to have been done under the power of sale, though not so recited. That at the sale Sara Elza Pridgen, respondent, became the purchaser. It was thereupon ordered that complainant be allowed ten days in which to surrender possession to respondent, in default of which the register should issue a writ of possession. An appeal was attempted by complainant without giving bond under section 6138, Code, Code 1940, Tit. 7, § 799, by making the affidavit there required, dated July 15, 1940. Disregarding such attempted appeal, the register on July 22, 1940, issued a writ of possession as thus ordered. It was returned executed July 24, 1940. All the proceedings thus recited to have occurred prior to July 5, 1940 decree appear in the record on the former appeal.
Appellant on the present appeal argues the following points now made: (1) That she was entitled to a jury trial, and that the decrees were made without reference to such right, even though the issues were certified for such trial. (2) That in confirming the register's report, fixing the amount necessary to redeem, the court improperly allowed an attorney's fee of $1,250. (3) That the foreclosure was not conducted in accordance with the power of sale, aided by section 9011, Code, Code 1940, Tit. 47, § 165. (4) That since the foreclosure sale was void, the court erred in ordering possession delivered under it. (5) That the proceedings had after the appeal was taken by which complainant was dispossessed were void and should be vacated, since an appeal under section 6138, Code, operates as a supersedeas.
The first two contentions above noted relate to questions involved on the former appeal, as to which there has been no additional ruling subsequent to the affirmance, and cannot now be reopened for further consideration. McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66; Sov. Camp, W. O. W. v. Moore, 235 Ala. 117, 177 So. 642; 5 Corpus Juris Secundum, Appeal and Error, § 1825.
Contentions numbered three and four are proper for attention on an appeal from the decree of July 5, 1940. But that decree does not subject her property to sale, and is not for the payment of money, and does not order her to perform any specific act, and therefore is not within section 6138, Code. Pritchett v. Wilson, 239 Ala. 146, 194 So. 176.
There was no motion here made to dismiss the appeal at the time of submission. We have held that a failure to move for a dismissal of the appeal, attempted to be taken in due time, because section 6138, Code, does not apply, is a waiver of defect, and that this Court will not dismiss the appeal of its own motion, and that a motion made after the submission comes too late. Walker v. Harris, 235 Ala. 384, 179 So. 213.
An examination of the record shows an auctioneer's certificate of the sale occurring on September 8, 1937, to appellee, the assignee of the mortgage, in front of the courthouse at Dothan after notice had been given by publication in the Dothan Journal, a newspaper published in Dothan, for four consecutive weeks immediately preceding the date of sale. There was also a deed in the name of the mortgagor executed by the auctioneer. This deed also makes full recitals as to the notice and place of sale and of the sale. The purchaser was appellee who then was owner of the mortgage. Both instruments complied with the statute of frauds. Section 8035, Code, Code 1940, Tit. 20, § 4. The power of sale in the mortgage leaves it to the mortgagee to determine whether notice shall be given and the kind of notice and the place of sale. The recitals in the auctioneer's certificate and deed show that notice was given for thirty days, and that the sale was at the courthouse door of the county where the land is situated. The exercise of the discretion thus vested in the mortgagee, or his assignee (section 9010 [4896] Code, Code 1940, Tit. 47, § 164) was reasonable and prudent, and in fact was in compliance with the provisions of section 9011, Code, though that statute became effective with the Code which was not operative until after the mortgage was executed, and therefore does not control an exercise of the power under it, assuming that the terms of the power would make it operative, if it were in effect. State Bank of Elberta v. Peterson, 226 Ala. 13, 145 So. 154.
The auctioneer's certificate, pursuant to the power of sale, is prima facie evidence of its recitals as to the notice, the time and place of sale, and regularity of it all. Ward v. Ward, 108 Ala. 278, 19 So. 354; Naugher v. Sparks, 110 Ala. 572, 18 So. 45; Harton v. Little, 176 Ala. 267, 57 So. 851; Williams v. Oates, 212 Ala. 396, 102 So. 712; Ritter v. Moseley, 226 Ala. 648, 649, 148 So. 143.
Moreover, the auctioneer himself testified that the sale was made and conducted by him as recited in his certificate.
Since the purchaser was the owner and holder of the mortgage, the auctioneer's certificate is all that is necessary to a valid foreclosure. Bellenger v. Whitt, 208 Ala. 655, 95 So. 10. We think that the court was correct in holding that the mortgage was duly foreclosed.
We have responded to four of the contentions made by appellant, and the fifth is not applicable except upon a holding by us that the foreclosure sale was void for some reason assigned by appellant. Since we do not so find, there is no necessity to consider that contention. We forego discussion of matters not argued by counsel.
Affirmed.
GARDNER, C. J., and THOMAS and BOULDIN, JJ., concur.