Jones v. Caraway , 205 Ala. 327 ( 1921 )

We consider first the case made as to lot 123. The bill avers that at the foreclosure sale of April 1, 1919, Cornell purchased lots 116 and 123 in mass for less than their value, and upon that fact bases her conclusion that the sale was and is voidable at her election, and prays that it be avoided, and that she be restored to, and allowed to exercise under the court's decree her equity of redemption, offering, as we understand the bill, to pay whatever sum may be found due on account of lot 123. But unfortunately for complainant's contention on this point, whatever might have been the effect of a sale and purchase in mass of the two distinct and separate parcels had complainant at the time had an interest in both, in this case a prior mortgage had been foreclosed more than two years before; and, unless complainant had a right at that time to avoid that sale or assert a right to redeem under the statute notwithstanding the lapse of more than two years — the reasons for our conclusion that she had no such right on the facts shown by the bill remain to be stated — she had no interest in lot 116. True, the averment is that there were two houses or settlements on lot 123; but we do not find that fact sufficient to call into operation the equitable rule which requires that on a foreclosure sale separate parcels should first be offered singly. This is a town lot, and the averment that there are two houses on it — or settlements, as the pleader seems to have added for color — hardly suffices to show that the property might be sold to better advantage if divided, or that a division would have been practicable or advisable. The natural inference is that the lot had already been reduced to its most convenient and marketable size — at least no presumption to the contrary can be indulged — and hence that complainant suffered no detriment when the lot was offered as a whole. Mahone v. Williams, 39 Ala. 202; 27 Cyc. 1480. In Todd v. Interstate Mortgage Co., 196 Ala. 169,71 So. 661, the different parcels were entirely separate. It results that the sale and purchase of the two lots in solido could not have prejudiced complainant, and she has shown no sufficient ground for an avoidance of the foreclosure sale under which defendant claims to own lot 123.

We consider now the case as to lot 116. The first mortgage on this lot was foreclosed about three years before the bill in this cause was filed, and the defendant stands now in the shoes of the purchasers, except as his position has been affected by complainant's excuse for delay, which is based upon incidents of an alleged confidential relation between herself and defendant, to be stated presently. In her brief complainant claims the right to avoid the foreclosure, and to redeem as a mortgagor before foreclosure on several grounds. She contends, on an averment identical with that made as to lot 123, that the lot here should have been subdivided; but this contention has been disposed of. She contends further that the property of her son, for whom she was surety, as has appeared, and whose property was exposed for sale in mass with her lot in question, should have been offered first and separately, and no doubt she is right as to this, but the sale was not void for that reason, but only voidable, and by the delay of three years in filing her bill complainant must be held to have lost the right to avoid on this ground. Alexander v. Hill, 88 Ala. 487, 7 So. 238, 16 Am. St. Rep. 55.

In respect of complainant's asserted alternative right to redeem under the statute, there is no very clear separate averment of the facts affecting the redemption of lot 116, or, to speak more accurately, of the facts brought forward as affording an excuse for complainant's admitted delay of more than two years in offering to redeem. But from the bill we gather averments:

That in the creation of "these mortgages" — meaning, we infer, all the mortgages previously referred to — and during "many" of the transactions connected therewith, defendant acted as adviser and attorney for complainant, and she relied on him to care for her interest involved therein, and believed he was doing so, "as he asserted he was"; that immediately after the foreclosure of November 18, 1918 — second mortgage on lot 116 — she spoke to defendant, "and made an offer to redeem said property"; that in reply he said there was no need to hurry, that complainant had two years from that date — meaning, we take it, from November 18, 1918 — in which to redeem, which statement was repeated on several occasions to complainant and others; that defendant, as trustee in the mortgage which had been foreclosed on the last-mentioned date, had the same right as complainant had to redeem from the foreclosure at which Verner and Rice had purchased, or to disaffirm, or to pay off that mortgage and have the same assigned to him; that, relying on defendant's statements, "and, believing that he was taking care of her interest in the matter, as he asserted he was," complainant "took no action whatever in respect to the Verner and Rice foreclosure, either by way of disaffirming and annulling the same or by way of exercising her statutory right of redemption thereunder"; that "about four days before the expiration of the two years from said Verner and Rice foreclosure the said defendant obtained a conveyance from the said Verner and Rice for $2,500 of all of the rights which they held under and by virtue of said foreclosure deed, * * * and very soon thereafter complainant became aware of the fact that said Henry A. Jones, for himself and the respondents, as their attorney, denied the right of complainant to redeem her said property, and claimed that she had lost her right of redemption in respect to the Verner and Rice foreclosure, and that he and his clients under said mortgage intended to hold the property from her right of redemption;" that "she was lulled and made to feel secure in her rights to redeem within the period from November 18, 1918, to February 18, 1919, by the representations of the said Henry A. Jones, respondent [defendant Jones], who all along had been her adviser and attorney, and a man in whom she had the utmost confidence; * * * she was made to feel and believe that she would be allowed two years from the foreclosure of November 18, 1918, just as he had agreed with her following said foreclosure;" that Jones and the other defendants "conspired to deceive her in respect to her rights in the premises, and to take advantage of her lack of knowledge and business experience, and of her confidence in them, and thereby obtained her property contained in said mortgages for grossly less than its real value, and in pursuance of that design lulled her into inactivity," etc.

It may be that the bill is not all a bill of the sort should be, but the demurrer against so much of it as concerns lot 116, except as demurrant sets up complainant's failure to make a tender of purchase money, interest, and lawful charges, is of utmost generality. We have stated the general effect of the demurrers. Quoting now on the point of complainant's reason for failing to offer to redeem within two years from the foreclosure of February 17, 1917, the language of the demurrer is that complainant's bill does not "aver or show any valid or sufficient excuse therefor." As against this demurrer the court is of opinion that the bill, as a bill to redeem lot 116 under the statute, should be sustained.

The averments as to the relation between defendant and complainant are confused, and not altogether consistent. It does not clearly appear that complainant had a right to rely upon defendant's advice in respect of redeeming from the foreclosure of February 17, 1917, by reason of any employment for that particular purpose. However, the rule of equity in respect of confidential relations between attorney and client is founded, not on the professional relation per se, but on the influence which that relation implies, and will therefore operate as long as the influence exists, although the attorney may not be acting as attorney at the time. Leading Cases (White Tudor), vol. 2, pt. 2, p. 1224. We have quoted the averments of the relation between these parties at and during the time when, as complainant avers, she relied upon defendant to advise her and care for her interest, and if these averments should be proved, complainant would, under the statute, be entitled to relief as to lot 116 but for the fact that, here as in the case of lot 123, she has failed to tender the amount necessary to redeem. The fact that complainant stood ready to redeem at the time when, as she avers, defendant denied her right, did not relieve her of the necessity of making the tender required by the statute. Beatty v. Brown, 101 Ala. 695, 14 So. 368. Until a sufficient tender is made, the mortgagor after foreclosure has no property right in the lands the subject of the mortgage. Burke v. Brewer, 133 Ala. 389, 32 So. 602.

The demurrers to parts of the bill should have been sustained. The cause will be remanded in order that a decree may be entered by the trial court in accordance with this opinion, after which complainant will be allowed a reasonable time in which to amend, if she shall be so advised.

Reversed and remanded.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.

On Rehearing. SAYRE, J. Application overruled.

ANDERSON, C. J., and SAYRE, THOMAS, and MILLER, JJ., concur.