Summerford v. Hammond
Supreme Court of Alabama
Appeal from Houston. Chancery Court. Heard before Hon. L. D. Gardner. Bill by W. H. Summerford against J. H. Hammond and others, to redeem land from an alleged invalid foreclosure sale. Prom a decree dismissing the bill complainant appeals. A sale of land under a power which rests wholly in parol does not divest mortgagee of the legal title nor cut off the mortgagor’s equity of redemption.—Jackson u.
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Appeal from Houston. Chancery Court. Heard before Hon. L. D. Gardner. Bill by W. H. Summerford against J. H. Hammond and others, to redeem land from an alleged invalid foreclosure sale. Prom a decree dismissing the bill complainant appeals. A sale of land under a power which rests wholly in parol does not divest mortgagee of the legal title nor cut off the mortgagor’s equity of redemption.—Jackson u. Scott, 67 Ala. 99; Cooper v. Hornsby,.71 Ala. 65; Tif lón v. Warthem, 93 Ala. 323. Where the power of sale requires notice to be given of the time and place of the sale, such notice is a…
1Opinion of the CourtMayfield, J.
This is a bill by a mortgagor, to redeem. The right asserted is the equitable, and not the statutory. The answer of the defendant set up as a defense a foreclosure under the power of the mortgage.
As has been frequently said by this court, the equity of redemption is essentially different from the statutory right. The latter never exists until the former is barred. A valid foreclosure destroys the one and creates the other; but an invalid sale neither destroys the one nor creates the other.—Rainey v. McQueen, 121 Ala. 191, 25 South. 920; Bolling v. Jones, 67 Ala. 508.
A sale under and in…
2Cases cited10 opinions
- Cooper v. HornsbySupreme Court of Alabama · 1881
- Peagler v. StablerSupreme Court of Alabama · 1890
- McLean v. Presley's Adm'rSupreme Court of Alabama · 1876
- Garland v. WatsonSupreme Court of Alabama · 1883
- Goree v. ClementsSupreme Court of Alabama · 1891
5 more not listed; retrieve them via the Exa API.
3Cited by8 opinions
- Dewberry v. Bank of Standing RockSupreme Court of Alabama · 1933
- Dinkins v. LathamSupreme Court of Alabama · 1918
- Hamm v. ButlerSupreme Court of Alabama · 1927
- Kelley Realty Co. v. McDavidSupreme Court of Alabama · 1924
- Garst v. JohnsonSupreme Court of Alabama · 1948
3 more not listed; retrieve them via the Exa API.