This is true in the case of a sale under a power in the mortgage. 41 C. J. note, 68; Smith v. Jack, 209 Ala. 520, 96 So. 419; New Brockton Bank v. Dunnavant, 204 Ala. 636, 87 So. 105; Irby v. Com. Nat. Bank, 203 Ala. 228, 82 So. 478; Hill v. Helton, 80 Ala. 528, 1 So. 340; Johns v. Anchors, 153 Ala. 498, 45 So. 218. A. Whaley, of Andalusia, for appellee.
Drum Ezekiel v. Bryan, 193 Ala. 395, 69 So. 483; Brown v. Hunter, 121 Ala. 210, 25 So. 924; Morgan v. Lehman, Durr Co., 92 Ala. 440, 9 So. 314; Smith v. Gordon, 136 Ala. 495, 34 So. 838; Burgin v. Hodge, 207 Ala. 315, 93 So. 27. Where property has been sold under power of sale in a mortgage and the purchaser has conveyed to another, the mortgagor must redeem from the vendee and cannot redeem from the purchaser. Code 1923, § 10140; Camp v. Simon, 34 Ala. 126; Lehman, Durr Co. v. Collins, 69 Ala. 127; Thompson v. Brown, 200 Ala. 382, 76 So. 298; Smith v. Jack, 209 Ala. 520, 96 So. 419; Hamilton v. Cody, 206 Ala. 102, 89 So. 240; Robbins v. Brown, 151 Ala. 236, 44 So. 63. Any agreement by Robertson not in writing is void under the statute of frauds. Code 1923, § 8034 (5).
Am.Jur. 8 pp. 747 and 782; 11 C.J.S. Boundaries p. 596; Barker, et al. v. Mobile Electric Co., 173 Ala. 28, 55 So. 364; Miller v. Cullum, 4 Ala. 576. Findings of the Chancellor hearing the testimony will be given the weight of a jury verdict and will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Spradling v. May, 259 Ala. 10, 65 So.2d 494; Gardiner v. Willis, 258 Ala. 647, 64 So.2d 609; Johnson v. Johnson, 215 Ala. 487, 111 So. 207; Smith v. Jack, 209 Ala. 520, 96 So. 419. McCALL, Justice.
21 C.J. 258; Try-me Bottling Co. v. Teaver, 241 Ala. 266, 2 So.2d 611; Travelers' Fire Ins. Co. v. Young, 225 Ala. 671, 145 So. 140; Wood v. Wood, 134 Ala. 557, 33 So. 347; Crawford v. Horton, 234 Ala. 439, 175 So. 310; Marbury Lumber Co. v. Posey, 142 Ala. 394, 38 So. 242. A bill to redeem by one heir without joining the others is demurrable. 59 C.J.S., Mortgages, § 866, p. 1677; Cook v. Benton, 245 Ala. 683, 18 So.2d 405; Russell v. Bell, 160 Ala. 480, 49 So. 314. The rule allowing one cotenant to redeem without making other cotenants parties applies only before foreclosure. Phillips v. Harvey, 239 Ala. 605, 196 So. 498; Bailey v. Jefferson, 186 Ala. 214, 64 So. 955; McQueen v. Whetstone, 127 Ala. 417, 30 So. 548. Bill to set aside deed given by mortgagor to mortgagee must allege that legal title to land is in respondent at time of filing suit, or that complainant has no knowledge of any transfer. Hobson v. Robertson, 224 Ala. 49, 138 So. 548; Smith v. Jack, 209 Ala. 520, 96 So. 419; Hamilton v. Cody, 206 Ala. 102, 89 So. 240; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40; Garrett v. Federal Land Bank of New Orleans, 239 Ala. 191, 194 So. 530. Where no undue advantage is shown to have been taken, no oppression and no great disparity between valuation of property surrendered and debt it secures, deed given in lieu of foreclosure will be upheld. Lamar v. Robertson Banking Co., 238 Ala. 623, 193 So. 152. Allegation that consideration in deed was grossly inadequate and reasonable market value of property was and is greatly in excess of consideration recited, without more, is merely a conclusion without facts to support it. Grissom v. J. B. Colt Co., 218 Ala. 336, 118 So. 580; Light v. Henderson, 158 Ala. 200, 48 So. 588; Meyer v. Bloch, 139 Ala. 174, 35 So. 705. No facts are alleged warranting a finding that there was an agreement to give complainant's ancestor the statutory right to redeem.
The law has fixed and declared the amount he must tender and pay in such event. Prichard v. Sweeney, 109 Ala. 651, 19 So. 730; Smith v. Jack, 209 Ala. 520, 96 So. 419. "A bill is authorized when the other party is in default in furnishing the statement, in failing to enter into the arbitration, or upon the failure of the arbitrators to make an award without fault on the part of the redemptioner. If other alleged lawful charges, which are controverted in good faith, are included in the statement, so that the redemptioner cannot reasonably ascertain the amount he should tender for redemption, a bill may be filed to settle the whole controversy.
The foreclosure of a mortgage under power of sale extinguished the relation of mortgagor and mortgagee as effectually as a sale under decree of foreclosure in equity. Jackson v. Tribble, 156 Ala. 480, 47 So. 310; American F. L. Mtg. Co. v. Pollard, 120 Ala. 1, 24 So. 736; Smith v. Jack, 209 Ala. 520, 96 So. 419; 20 So.Dig., Mortgages 378; Sloss-S. S. I. Co. v. Wilkes, 231 Ala. 511, 165 So. 764, 109 A.L.R. 385; Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105. Mortgagee having elected to proceed on power in mortgage to foreclose, extinguished its right to proceed afterward on mortgage to recover deficiency. Authorities, supra; 13 Ala. Dig., Judgment 713 (2).
Inasmuch as the Land Bank sold and conveyed the entire mortgage indebtedness to Smith, complainant owed it nothing and could redeem nothing from it. Hamilton v. Cody, 206 Ala. 102, 89 So. 240; Smith v. Jack, 209 Ala. 520, 96 So. 419; Hobson v. Robertson, 244 Ala. 49, 138 So. 548; Garrett v. Fed. Land Bank, 239 Ala. 191, 194 So. 530; Long v. King, 233 Ala. 379, 171 So. 738. Delivery of deed from Smith to complainant was a redemption. Long v. King, supra; Francis v. White, 160 Ala. 523, 49 So. 334; Hudson v. Morton, 231 Ala. 392, 165 So. 227. There was no consideration paid for attempted reservation of mineral interest and therefore it was not severed. Adams v. Riddle, 233 Ala. 96, 170 So. 343, 107 A.L.R. 657. Appellant was not a necessary party to the redemption.
Nothing in the statute requires the preservation of any writings as evidence of the arbitration proceedings. Numerous conditions may arise in which parol testimony may enter into the inquiry, as appears in the case of Smith v. Jack, 209 Ala. 520, 96 So. 419, wherein much parol evidence went to the question of revoking the appointment of a referee. Probably if framed anew in this day, our statutes would be much more elaborate, but it appears that proceedings between laymen in the course of business transactions were to be rather simple, designed to avoid controversy in the courts on the one question of the value of improvements. Cramer Cohen v. Watson, 73 Ala. 127; Cummings v. Vann, 215 Ala. 488, 111 So. 229.
The Legislature evidently did not intend that the purchaser at judicial sales, and his associates, or assigns, by complicating the title, could jeopardize or make hazardous the exercise of the right of redemption. In states with statutes similar to ours, the requirement is only that all owners of the fee be brought in on redemption. Smith v. Jack, 209 Ala. 520, 96 So. 419; Hargett v. Franklin County et al., 212 Ala. 423, 103 So. 40; Citizens' Natl. Bank v. Western L. B. Co., 64 Mont. 40, 208 P. 893. There would be a different condition if the bid of the purchaser had been assigned before the confirmation of the sale, and the court had ordered the delivery of the deed to the assignee.
4 Jones on Mortgages (4th Ed.) 683. By the foreclosure of a mortgage, the mortgage is merged in the title which the purchaser obtains by his purchase, and the mortgage debt is extinguished to the extent of the bid. Harris v. Miller, 71 Ala. 26; Smith v. Jack, 209 Ala. 520, 96 So. 419; Ivy v. Hood, 202 Ala. 121, 79 So. 587; Irby v. Comm. Bank, 203 Ala. 228, 82 So. 478; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413. The decree disposing of the rights of interveners was erroneous. 3 Jones on Mortgages (4th Ed.) 293; Lunsford v. Shannon, 208 Ala. 409, 94 So. 571. Appellant Tennessee Company should have had relief under its cross-bill.