I concur in the result, but upon an entirely different reason from that of the majority.
This is not a bill for specific performance, but for redemption. It shows that complainant was unable to exercise his statutory right of redemption from the senior mortgage, which had been duly foreclosed, Beers becoming the purchaser, and a contract was entered into between Beers and complainant's wife and son for the purchase of the land embraced in the mortgage, which purchase, the bill alleges, was for complainant's benefit. Respondent Henderson, a junior mortgagee, had a right of redemption as to this senior mortgage, and his right was expressly recognized in complainant's contract of purchase in the following language:
"It is understood that this contract is made subject to right of redemption, and if the property is redeemed all payments made by second party are to be returned to her without interest."
I think the bill shows that Henderson exercised this right. The bill in some portions refers to the transaction between Henderson and Beers as a purchase by Henderson, and in another portion makes reference thereto as if it were a redemption. Henderson clearly had the right to thus acquire from Beers an indefeasible legal title. Wootten v. Vaughn, 202 Ala. 684,81 So. 660; Hamilton v. Cody, 206 Ala. 102, 89 So. 240.
As previously stated, complainant was in no position to exercise the right, and his contract of purchase, which he alleges was made for his benefit, expressly recognized Henderson's right to thus acquire the title.
The fraud alleged in the bill, upon which much stress is laid, consists in the fact that complainant received a letter from Beers stating Henderson had redeemed, and returning the money which had been paid, which was pursuant to the written contract. At that time the period for the exercise of statutory redemption had expired, and the alleged fraud consists in the statement that Henderson had redeemed when in fact he had purchased. But of what concern was this to the complainant? The contract he relied upon was made expressly subject to Henderson's right to acquire the title, and if the arrangement made between Beers and Henderson was satisfactory between themselves, how is complainant injured, or of what can he complain? Indeed, for the purposes of this case the purchase by Henderson from Beers was, in substance and effect, a redemption. If Beers saw fit to give Henderson time within which to pay the full purchase price, rather than require its immediate *Page 697 payment, that was a matter entirely with him, and such indulgence could in no manner work injury to the complainant. He is in no position to interpose an objection.
Our decisions are to the effect that the mortgagor will not be permitted to avoid a foreclosure on the ground that the foreclosure sale was not in writing, or that credit was extended by the mortgagee to the purchaser. Cooper v. Hornsby,71 Ala. 62; Durden v. Whetstone, 92 Ala. 480, 9 So. 176. The principle underlying those decisions is equally applicable here, and I am of the opinion therefore that the bill neither charges fraud in law or fact, and that as to the land involved it was without equity. Such was the view entertained by the learned judge of the court below, and in which I fully concur.