The bill as amended avers that before respondent acquired the deed to the land from the mortgagee, Ladd Co., the complainant had tendered the amount due upon the mortgage to the mortgagee, and that respondent knew this before buying the land. This, however, does not show a satisfaction of the mortgage, as the mere tender did not so satisfy the mortgage as to divest the title, as nothing short of payment would do so. Section 4899 of the Code of 1907.
True, a tender of the amount due before a foreclosure, followed up by an offer to do equity, would enable the mortgagor to prevent by injunction the foreclosure by sale, for the reason that it would be unnecessary and oppressive. Wittmeier v. Tidwell, 147 Ala. 354, 40 So. 963. The first headnote in this case is misleading, and does not conform to the opinion, which does not hold that a sale of the property after tender would be invalid. The opinion holds that it would be prevented or set aside after made by appropriate action etc., but not that such a sale was void. Therefore the only theory upon which the amended bill has equity is that there was no foreclosure of the mortgage under which the respondent got his deed and that the mortgage has been paid in full.
The respondent's deed recites a sale by foreclosure of the mortgage before the trial of the detinue suit and the ascertainment of the mortgage indebtedness and the payment of same by the complainant, mortgagor, and if this is true the respondent, Garrett, acquired the legal title to the land, and the subsequent satisfaction of the mortgage in this suit for the personal property did not defeat his said title. The bill, however, avers that, notwithstanding the recitals of the deed, the sale was never in fact made, and that there was not a foreclosure of the mortgage as to the land prior to the payment of the mortgage indebtedness and cost, as ascertained in the detinue suit, and that no credit was allowed or considered of the amount alleged to have been paid for the land in the ascertainment of the mortgage indebtedness in the detinue trial. In other words, that the mortgage still existed as such, and had not been foreclosed as to the land when the mortgage indebtedness as ascertained upon the trial was paid. If this is true, the mortgage became satisfied and the respondent's deed is invalid and should be canceled, and the bill as last amended contains equity. If, however, this material averment of the bill is not true and the mortgage was in fact foreclosed by a sale of the land as recited in the deed, the respondent acquired title to the land and was not bound by the subsequent ascertainment of the amount of the indebtedness in the detinue suit, whether the amount paid for the land was or was not credited upon the trial, as it was for the complainant to prove this credit.
It is true, the mortgage authorized a public or a private sale; but the respondent claims under a public sale and not a private one, and must therefore stand or fall upon such a sale.
The present bill is not, strictly speaking, one under the statute to quiet title, but is by the owner in possession to remove or cancel a deed as a cloud upon his title, and did not have to aver a peaceable possession as required under the statute. Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172, and cases there cited and discussed.
The decree of the circuit court in overruling the demurrers is affirmed.
Affirmed.
SAYRE, SOMERVILLE, and THOMAS, JJ., concur. *Page 243