The effect of the assignment by the debtor mortgagor, after foreclosure, of the statutory right of redemption, is to subordinate that right to the right of the junior mortgagee to redeem from said mortgage sale. By the very terms of the statute in such cases, the junior mortgagee is the first in order of priority, while the assignee of the statutory right is at least third, if not fourth, in the order. Code 1923, §§ 10140 and 10141.
The statute made the giving of notice to those having a prior right to redeem a prerequisite of complainant's right as the assignee of the debtor mortgagor within twelve months from the foreclosure. Yet, if the averments of the bill are true, he proceeded in disregard and in violation of the statute. In legal effect, he has wrongfully destroyed the junior mortgagee's right to redeem the property from the purchaser at the foreclosure sale and is in no position to claim the protection of the statute. He violated the very principle often declared by this court, that one to claim the benefit of the statute must proceed in accordance with its provisions. By his wrongful act he procured the execution of redemption deed to the mortgagor debtor, a fact which naturally tended to mislead the junior mortgagee into a sense of security by leading it to believe that the first mortgage had been satisfied and that the junior mortgagee stood in no danger of losing his debt or the security therefor. By such wrongful act he took the title in trust for the benefit of the junior mortgagee, and a court of equity will enforce such constructive trust upon the junior mortgagee's offer to do equity, Arnold et al. v. Black,204 Ala. 632, 87 So. 170.
In my judgment the court properly sustained the demurrers to the bill and the decree should be affirmed.