Benefield v. Cox
Supreme Court of Alabama
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge. Bill by E. W. Benefield against M. G. Cox and others, to require the affirmance or disaffirmance in a foreclosure sale and for a receiver. Upon decree annulling the receivership, complainant appeals.
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Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge. Bill by E. W. Benefield against M. G. Cox and others, to require the affirmance or disaffirmance in a foreclosure sale and for a receiver. Upon decree annulling the receivership, complainant appeals. The bilf shows that complainant prarchased certain lands in a foreclosure sale under the power contained in the mortgage executed by M. G. Oox and others to W. E. Snead, to secure the balance of the purchase money on said land, which land had been sold by the complainant and another Benefield to Oox and others, the mortgagors. The…
1Opinion of the Court
SOMERVILLE, J..[1] It has been expressly determined. by this court that, in a suit by a mortgagee, who has purchased at his own sale without authority, to compel an election by the mortgagor to either affirm or disaffirm such purchase, the chancery court is without authority to appoint a receiver for the rents and profits, though the mortgagor is insolvent and is committing waste. McLean v. Presley’s Adm’r, 56 Ala. 211, 218.
[2, 3] This is because the purchaser has the absolute legal title — 'until it is disaffirmed by the mortgagor — and could maintain ejectment for the land; and a receiver…
2Cases cited3 opinions
- McLean v. Presley's Adm'rSupreme Court of Alabama · 1876
- Hendrix v. American Freehold Land Mortgage Co.Supreme Court of Alabama · 1891
- Phillips v. TaylorSupreme Court of Alabama · 1892
3Cited by1 opinion
- Peoples Sav. Bank v. Southern Cotton Oil Co.Supreme Court of Alabama · 1944