Opinion
1 Div. 602.
December 18, 1930.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Gordon, Edington Leigh, William Hamilton, and J. G. Bowen, all of Mobile, for appellant.
There must be a valid or legal consideration for an agreement to extend the time for payment of a note. Lehnert v. Lewey, 142 Ala. 149, 37 So. 921; Howle v. Edwards, 97 Ala. 649, 11 So. 748; Scott v. Scruggs, 95 Ala. 383, 11 So. 215; Cox v. M. G. R. Co., 37 Ala. 320; M. M. R. Co. v. Brewer, 76 Ala. 135; 8 C. J. 434. The time to which it was agreed to extend payment of the note should have been alleged, and so the time when tender was made. Shield v. Sheffield, 79 Ala. 91; Cummings v. Badger Lbr. Co., 130 Mo. App. 557, 109 S.W. 68; Vann v. Marbury, 100 Ala. 438, 14 So. 273, 23 L.R.A. 325, 46 Am. St. Rep. 70; 8 C. J. 237. The bill should allege that complainant was ready, able, and willing at all times to pay the full amount of the indebtedness between the time of the alleged tender and the alleged foreclosure. 38 Cyc. 158; Frank v. Pickens, 69 Ala. 369; Maxwell v. Moore, 95 Ala. 166, 10 So. 444. 36 Am. St. Rep. 190; Odum v. Rutledge J. R. Co., 94 Ala. 488, 10 So. 222; McCalley v. Otey, 90 Ala. 302, 8 So. 157; Id., 99 Ala. 584, 12 So. 406, 42 Am. St. Rep. 87; Wilson v. Kirkland, 172 Ala. 72, 55 So. 174; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963. The mortgagee was not unlawfully in possession of the mortgaged property, even though there had been a valid tender. Garrett v. Cobb, 202 Ala. 241, 80 So. 79.
Harry T. Smith Caffey and T. Wills Moore, all of Mobile, for appellee.
The facts alleged in the bill show an oppressive and inequitable exercise of the power of sale in the mortgage against which a court of equity will relieve by setting aside the sale and letting complainant in to redeem, Abel v. Fricks, 219 Ala. 619, 123 So. 17; Castleman v. Knight, 215 Ala. 429, 110 So. 911; Lyons v. Jacoway, 205 Ala. 456, 88 So. 599, Henderson v. Wilson, 161 Ala. 504, 49 So. 845; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963; Struve v. Childs, 63 Ala. 473; McCalley v. Otey, 90 Ala. 302, 8 So. 157; Id., 99 Ala. 584, 12 So. 406, 42 Am. St. Rep. 87; Garrett v. Cobb, 202 Ala. 241, 80 So. 79. The right to foreclose is waived by an agreement to extend the mortgage debt without regard to any new consideration. Nelms v. Rogers, 155 Ala. 489, 46 So. 453; Carwile v. Crump, 165 Ala. 206, 51 So. 744. The bill having equity as one to set aside a foreclosure in perversion of the power of sale, regardless of whether or not there was an extension, it is immaterial that the bill does not allege the date to which payment was extended. Wright v. Wright, 200 Ala. 489, 76 So. 431; Worthington v. Miller, 134 Ala. 420, 32 So. 748; Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Noble v. Moses Bros., 81 Ala. 530, 1 So. 217, 60 Am. Rep. 175; Moor v. Moor, 211 Ala. 56, 99 So. 316; Florence L. Co. v. Florence, 199 Ala. 580, 75 So. 19. The allegations as to tender are sufficient. McCalley v. Otey, supra; Randolph v. Bradford, 204 Ala. 378, 86 So. 39, A mortgagee in possession without foreclosure is liable in equity to account for rents or rental value and for waste. Roulhac v. Jones, 78 Ala. 398; Turner v. Wilkinson, 72 Ala. 361; Harris v. Jones, 188 Ala. 633, 65 So. 956; Perdue v. Brooks, 85 Ala. 495, 5 So. 126; Clark v. Whitfield, 218 Ala. 593, 119 So. 631; Johnson v. Davis, 180 Ala. 143, 60 So. 799; Amer. etc., Mtg. Co. v. Pollard, 132 Ala. 155, 32 So. 630; Dozier v. Mitchell, 65 Ala. 511.
The legitimate purpose for which a power of sale is given in a mortgage is to secure repayment of the mortgage indebtedness. If this power is perverted from its legitimate purpose and is used as for the oppression of the debtor or to enable the creditor to acquire the property for himself, or other illegitimate purpose, a court of equity will enjoin the sale or set it aside after it is made. This equitable principle is well recognized by the authorities generally (3 Jones on Mortgages [8th Ed.] § 2330), and has been given application in numerous decisions of this court, among those most recent, Castleman v. Knight, 215 Ala. 429, 110 So. 911; Abel v. Fricks, 219 Ala. 619, 123 So. 17; Ballenger v. Price, 219 Ala. 412, 122 So. 628; Marsh v. Elba Bank Trust Co., 207 Ala. 553, 93 So. 604; and Henderson Law Co. v. Wilson, 161 Ala. 504, 49 So. 845, wherein the earlier cases are noted.
The bill charges respondent with using the power of sale for the purpose of acquiring the property for himself and not the collection of the debt, and scheming to this end refused "to accept what was due on the mortgage, though the full amount thereof was tendered." The averments as to the interest note which became due June 23, 1926, and respondent's conduct in regard thereto, tend to substantiate the theory of the bill that respondent attempted to accelerate the maturity of the principal sum for the purposes above indicated. We think the bill is sufficient to invoke the equitable principle above noted.
The averments of the bill show a tender and refusal of the amount due on the interest note as well as his refusal to accept the full amount due on the mortgage, notwithstanding complainant's offer to do so, and arrangements completed to that end. In the bill complainant submits herself to the jurisdiction of the court and offers to pay whatever may be found due on accounting. The foregoing averments suffice for the purposes of the case, and no further tender or payment of the money into court was necessary. McCalley v. Otey, 90 Ala. 302, 8 So. 157; Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963. The case of Garrett v. Cobb, 202 Ala. 241, 80 So. 79, holds nothing to the contrary.
The question as to consideration for agreement of extension of the due date of a note, treated in Lehnert v. Lewey, 142 Ala. 149, 37 So. 921, cited by appellant, is without application here, where the equitable principle above noted is sought to be invoked. Nor was the exact date of the extension here essential, as it is averred the tender was within the extension period, all of which is evidential matter having relation to the question of oppression and an abuse of the power of sale. The case of Shields v. Sheffield, 79 Ala. 91, cited by appellant, is therefore not here controlling.
If the foreclosure sale was fraudulent and therefore subject to be avoided, the mortgagee in possession may be held accountable for rent and waste. Johnson v. Davis, 180 Ala. 143, 60 So. 799; American Freehold Mtg. Co. v. Pollard, 132 Ala. 155, 32 So. 630; Perdue v. Brooks, 85 Ala. 459, 5 So. 126; Harmon v. Dothan Nat. Bank, 186 Ala. 360, 64 So. 621; vol. 3, Jones on Mortgages (8th Ed.) §§ 2448 and 2451.
We have considered the objections to the bill as argued by counsel for appellant, and conclude they are not well taken.
There is no error in the decree rendered, and it will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.