Kelley Realty Co. v. McDavid , 211 Ala. 575 ( 1924 )

On Rehearing. Counsel refers to the cases of Sanders v. Askew, 79 Ala. 433, and Randolph v. Bradford, 204 Ala. 378, 86 So. 39, as in conflict with our conclusion as stated above.

In Sanders v. Askew no notice at all was given of the mortgage sale, excepting it, of course, from the rule of the instant case.

In Randolph v. Bradford "the bill was filed in the alternative to enforce the equitable right of redemption or to disaffirm an irregular sale under a mortgage and redeem." The record shows that the bill was filed within two years after the irregular foreclosure. The opinion states merely that a sale under the power without giving the required notice "is ineffectual to foreclose the equity of redemption"; and the holding, on demurrer to the bill, was that an allegation that "the said land was not advertised as required in accordance with the terms and provisions of said mortgage" was but a conclusion, and was not sufficient. Randolph v. Bradford, supra, does not conflict with our present holding.

In Elrod v. Smith, 130 Ala. 212, 30 So. 420, the bill was for redemption by a junior mortgagee. It admitted a foreclosure under power of sale, but sought to avoid its effect by alleging (1) that the mortgagee purchased at the sale without authority to do so; and (2) that "no proper notice of the sale was given." "This latter averment," it was said, "is not the equivalent of in averment of no notice for the lack of which the sale would be invalid [italics ours]. Wood v. Lake, 62 Ala. 489, Sanders v. Askew 79 Ala. 435." We think that in Elrod v Smith, supra, the court had clearly in mind the distinction between invalidity because of no notice, and voidability because of irregularity in the notice.

In the opinion it was further said:

"The settled rule in this state, in ordinary cases, has fixed as a reasonable time, by analogy to the statute two years. In the absence of special circumstances excusing the delay, a failure to act within that time bars the right, notwithstanding mere irregularities may have existed in the exercise of the power of sale."

This indicates very clearly that the two-year rule was regarded as applicable, not merely to the single irregularity of an unauthorized purchase, but to any irregularity in the exercise of the power, rendering the sale voidable.

We adhere to our conclusion as originally expressed, and the application for rehearing will be overruled.

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