Where a bill to redeem is filed by a. mortgagor, the time within which it should be filed depends upon the character of the particular case.
Where there has been no sale or foreclosure by the mortgagee, the suit may generally be commenced at any time within which a statutory bar would not accrue, which, ‘in cases of real estate, is ten years.—Coyle v. Wilkins, 57 Ala. 108.
Where the mortgagee has made a sale under a power contained in the mortgage, and has become the purchaser at his. own sale, a bill to set aside the sale and redeem may be filed within a reasonable time, to be determined by the circumstances of each particular case. — Robinson v. Cullom & Co., 41 Ala. 693.
In cases where two or more mortgages have been given on the same property, and the first or prior ones have been foreclosed, without making the second or junior'mortgagee a party, the latter may file a bill to redeem at any time while his mortgage is operative, not exceeding the statutory limitation of five years.—Code, 1876, § 3227; Wiley v. Ewing, 47 Ala. 418.
Where, however, there has been a foreclosure under or by virtue of a decree in chancery, or under power of sale conferred in the mortgage, the offer to redeem by the debtor, whether made by bill or otherwise, must come within two years from the date of sale. This is under the provisions of the statute, as found in section' 2877 of the present Code.
One of the first questions presented for determination by the' record in this case is, whether Hornsby, the mortgagee, was. the real and true purchaser at his own sale, made on December-16, 1871, or whether Golden purchased bona fide for himself,, and re-sold to Hornsby without previous collusion or prearrangement. If he acted as the agent of Hornsby, the purchase made by him may be avoided by seasonable dissent. If not, the sale would cut off the mortgagor’s equity of redemp*65tion, and tbe offer to redeem would be barred after the lapse of two years.
The weight of the testimony, we think, after a careful examination of it, favors the view that G-olden bought the mortgaged land for himself, and that he re-sold it to the mortgagee.
It is true that no deeds were executed between the parties, but this was material only as affecting the legal title to the lands in question, which could be divested only by the execution and delivery of a conveyance in writing.—2 Jones on Mortg. § 1894; Graham v. Newman, 21 Ala. 497. It may be conceded that the purchaser could not have sustained an action of ejectment at law on such a title.—Jackson v. Scott, 67 Ala. 99. The purchase by Golden, however, gave him a right to compel the mortgagee, by specific performance, to convey to him. "Whether he settled the purchase-money in lawful currency, or by a debt due him from the mortgagee, was a matter resting exclusively with them, and with which the mortgagor, Cooper, had no concern. Nor could third parties complain that these transactions were void under the statute of frauds, because not evidenced by writing. The benefit of this statute is not available without its 'being specially pleaded, and if waived, and the contract is admitted, or satisfactorily proved, it will be enforced. Such agreements are, therefore, not strictly void, but voidable merely.—Houston v. Hilton, 67 Ala. 374; Patterson v. Ware, 10 Ala. 444; Gillespie v. Battle, 15 Ala. 276. And where there is a past execution of a parol agreement to sell lands by delivery of possession to the vendee, and payment of a portion of the purchase-money, the statute of frauds has no application. — Code, § 2121; Brewer v. Brewer, 19 Ala. 481.
The sale made under the power by Hornsby to Golden, being obligatory on the parties and valid so long as they treated it as a binding agreement, it operated to cut off the equity of redemption of the mortgagor, Cooper, and reduced it to a mere statutory right of redemption. This could be asserted at any time within two years from the date of sale. The bill in this case, having been filed after the lapse of this period, was without equity, and was properly dismissed. The decree of the chancellor must therefore be affirmed.