
    Atkins v. Tutwiler.
    
      Bill by Purchaser at Mortgage Sale Under Junior Mortgage, for Specific Performance, and to Redeem from Senior Mortgagee.
    
    1. Mortgagee may give time though power in mortgage provides for cash sale. — It is”well settled in this State, that though the power in the mortgage expressly provides for a cash sale, time allowed the purchaser affords the mortgagor no ground of complaint. The only interest of the mortgagor is to get credit for the amount of the bid.
    2. The. right of the mortgagee when time is given the purchaser. — It is the right of the mortgagee, when time is given the purchaser on his bid, either to insist upon the cash payment of the bid, or make a consummation of the sale dependent upon a compliance by the purchaser with the terms of the credit agreed upon. Till then, he can hold the title, as mortgagee against the bidder.
    3. Same; obligation of purchaser , — 'Wh.ere one purchased at mortgage sale under power providing for sale for cash, and his bid was not paid in cash, the burden is on him to show that the mortgagee agreed to accept future payment in lieu of cash, and that he has complied with the terms of payment, or show some legal excuse for his failure.
    4. Specific performance; upon what the right depends. — The right of a purchaser to insist upon a specific enforcement of his right to have title made to him, is dependent upon his compliance with the terms of the sale.
    5. Rights of purchaser not fully paying purchase money; liable for rents and profits when in possession. — The purchaser ata sale under power in the mortgage who fails to pay his whole bid, is entitled in equity to the benefit of the mortgage security to the extent of the payment made by him. His possession of the mortgaged premises is that of a mortgagee before foreclosure, and he is accountable for rents and profits.
    Appeal from Hale Chancery Court.
    Heard before tbe Hon. Vm. H. Tayloe.
    Tbis bill was filed by P. A. Tutwiler, tbe appellee, against Florence E. Atkins, Mary B. Atkins and Yictor B. Atkins, claiming a riglit to pay to them the balance of complainant’s bid on land sold at mortgage sale at which be claims to have been tbe purchaser, and to have a deed executed to him; and also offering to redeem and pay off a prior mortgage to a Foreign Mortgage Company, transferred to and held by said defendants, or some one of tbem. Tbe chancellor decreed that tbe complainant was entitled to tbe relief prayed, from which decree defendants appeal.
    Pettus & Pettus, and A. M. Tunstall, for appellant,
    insisted that tbe mortgage of Woodruff & North was never foreclosed; that Tutwiler having failed and refused to pay his bid was not entitled to a specific enforcement of his alleged purchase, and was a mere assignee pro ia/nlo of said mortgage as security for the amount paid by him; citing: Seabury v. Stewart, 22 Ala. 207; Lewis v. Wood, 34 Am. Dec. 110 ; Rogers v. Saunders, 33 Am. Dec. 635; Story’s Eq. Jur. § 1408; 3rd Wait’s Ac. & Def. 802; Taylor v. Ag. Asso., 68 Ala. 229; Johnson v. Jones, 85 Ala. 290; Davidson v. Ernst, 7 Ala. 817.
    P. A. Tutwiler, for appellee,
    cited Meiuburn’s Heirs v. Bass, 82 Ala. 622 ; Perlcerson v. Snodgrass, 85 Ala. 139; Poioers v. Andrews, 84 Ala. 289.
   WALKER, J.

In March, 1882, Florence R. Atkins, who then owned the land involved in this suit, mortgaged it to the Dundee Mortgage & Trust Investment Company, Limited. In April, 1886, she executed a second mortgage on the same land to Woodruff & North. On May 28, 1888, Woodruff & North offered the land for sale under the power of sale in the mortgage to them, and it was bid in by Tut-wiler, the complainant in the original bill and the appellee in this court, for the sum of $1,504.00. On this bid he paid in cash $700.00. It does not appear who was in possession of the land at the time of this sale, or that Woodruff & North undertook to put Tutwiler in possession. He did, however, take possession of the land after the sale, and has been in possession, receiving the rents and profits, since that time. In July, 1889, part of the debt secured by the first mortgage to the Dundee Company being still unpaid, and the balance of the amount bid by Tutwiler at the sale under the power in the second mortgage to-Woodruff & North not having been paid, the appellant, Mary B. Atkins, purchased the respective interests of the mortgagees in both those mortgages, and they were duly transferred to her. And on September 2, 1889, she acquired all the right, title and interest of Florence R. Atkins in the land covered by the mortgages by a deed of conveyance from her. The original bill in this case was filed September 11, 1889, by said Tut-wiler, claiming as the purchaser at the sale under the power in tbe mortgage to Woodruff & North, to redeem tbe lands from tbe prior mortgage to tbe Dundee Company, and for tbe specific enforcement of bis rights under bis bid upon tbe payment of tbe amount of tbe balance found to be due thereon.

Tbe appellant contends that tbe appellee Tutwiler should be treated as a mortgagee in possession, and in that character should be charged with rents and profits ; and that be is not entitled to tbe specific enforcement of tbe contract of purchase made by bis bid at tbe sale under tbe power in the mortgage to Woodruff & North.

By tbe terms of that power tbe sale was to be for cash. It is well settled in this State that, though tbe power in tbe mortgage expressly provides for a cash sale, an agreement by tbe mortgagee to allow time to tbe purchaser affords tbe mortgagor no ground of complaint. “Tbe payment of tbe purchase-money is a matter between tbe mortgagee and tbe purchaser. Tbe mortgagor has no other interest, than that be obtain credit and benefit of tbe amount bid.” Mewburn v. Bass, 82 Ala. 622; Durden v. Whetstone, 92 Ala. 480; Cooper v. Hornsby, 71 Ala. 62. But it is clear that it is tbe right of tbe mortgagee either to insist upon tbe payment in cash of tbe amount of tbe bid, or to make .the consummation of tbe sale dependent upon a compliance by tbe purchaser with tbe terms of credit agreed upon. He is entitled, as against any bidder at tbe sale, to bold tbe title to tbe mortgaged property as.mortgagee until a bid is made and paid in the manner prescribed by tbe power, or until be becomes bound by tbe terms of an agreement between him and tbe successful bidder to execute a conveyance under tbe power and to become accountable to tbe mortgagor for tbe amount of tbe bid. Tbe mortgagee’s interest is to realize on tbe security to tbe extent of the debt due to him. Tbe successful bidder is not entitled to tbe property as purchaser until be complies with tbe conditions of the sale. When be claims as tbe purchaser at a sale under a power which provides for a sale for cash, if bis bid was not paid in cash, the burden is upon him to show that tbe mortgagee consented to accept a provision for future payment in lieu of tbe cash, and that the provision for such future payment has been made, or that there is some legal excuse for the failure to make it in tbe manner agreed upon.

Tutwiler’s version of tbe circumstances connected with bis bid at tbe sale under tbe power is, that before tbe sale was made be agreed with tbe attorney for tbe mortgagees to bid at tbe sale tbe amount of their debt, and that be would pay $700.00 in casb, and the balance of bis bid in a short time. He says : “There was no agreement or memorandum of the time -at which I was to pay the balance.” What was the meaning of the agreement to pay the balance of the bid “in a short time ?” We think that the circumstances indicate that it was the intention of the parties that the sale should be substantially a cash transaction, though the immediate payment of the whole of the purchase-money was waived. It is common in sales of real estate which are treated as cash transactions to allow the purchaser, after the terms are all agreed upon, several days or even as much as several weeks, to get together the money necessary to complete the purchase. If it is intended to extend credits for the whole or parts of the purchase-money for periods of as much as six months or a year, it is usual to make definite stipulations for such credits. When nothing is said about making a deed upon a payment of only a part of the purchase-money, and there is no agreement to postpone the time for the payment of any of it for any definite period, an allowance of “a short time” to the purchaser to pay the balance should, we think, be regarded as a mere temporary suspension of the consummation of the proposed sale, to afford the purchaser an opportunity to complete the payment of the purchase-money in cash, rather than as an agreement to treat the sale as completed upon the basis of a part payment in cash and a credit for the balance. Such an arrangement does not indicate an intention to extend a greater indulgence than would be required by one who does not happen to have on hand sufficient money to complete a trade, but has resources which may be promptly realized upon for this purpose. In the absence of unusual circumstances, jt seems plain that such an indulgence would not warrant the purchaser in delaying the consummation of the sale six months or a year.' When the sale is not to be consummated until all the purchase-money is paid, upon the failure- of the proposed purchaser to comply with a demand to complete his payment within the time allowed him for this purpose, the seller has the right to treat the contract of purchase as abandoned. The successful bidder does not acquire the rights of a purchaser unless his bid is made good. Seabury v. Stewart, 22 Ala. 207; Lewis v. Woods, 4 How. (Miss.) 86; s. c. 34 Am. Dec. 110.

No attempt is made to excuse Tutwiler’s failure to comply with the several demands made upon him for the payment of the balance, upon the ground that he was entitled, under the arrangement with the mortgagees, to further time within wbicb to mate the payment. The pendency of the suit brought by Florence It. Atkins, on the day of the sale under the power is set up as an excuse for the failure to pay the balance. The bill in that case merely sought relief against certain items claimed by the mortgagees in the two mortgages above mentioned which, the complainant contended, did not properly form parts of the amounts really due, and unpaid upon the debts secured by those mortgages respectively. It was not denied in that bill that part of the debt secured by the mortgage to Woodruff & North, was due and unpaid; nor was it denied that Woodruff & North, then had the right to sell the land under the power in the mortgage to them. Nothing was alleged against the regularity of the sale made under that power. The result of that suit could not have affected Tutwiler’s obligation to pay the amount of his bid to Woodruff & North. The pen-dency of that suit, was, therefore, no excuse for his failure to pay. His failure to pay the balance “in a short time,” though several demands were made upon him for such payment, left the mortgagees as free to treat the transaction as a mere ineffectual attempt to sell, as they would have been if the sale had been strictly for cash and the successful bidder had failed to pay the whole amount of his bid. Tutwiler is in no position to claim the benefit of the equitable remedy of specific performance when, instead of showing himself to have been “ready, desirous, prompt and eager” to carry out the contract, it appears that on several occasions, when, confessedly, the payment of the balance on his bid was due by the terms of the agreement on the subject, he failed to comply with demands for its payment, and has, without any legal excuse for the delay, waited for nearly sixteen months, and until after the mortgagees had transferred to another all the interest remaining in them under the mortgage, before offering to perform his part of the contract. The payment “in a short time” of the balance on his bid was a condition upon which depended his right to claim that the sale was consummated. There was no agreement that the rights of Woodruff & North, as mortgagees should be extinguished until that condition was performed. Without showing a performance of that condition, or any excuse for its non-performance, Tutwiler would not be entitled to damages in an action at law on his contract of purchase, much less to a decree for the specific performance of that contract. Comer v. Bankhead, 70 Ala. 493; Lewis v. Wood, 34 Am. Dec. 110. In the case of Mewburn v. Bass, 82 Ala. 622, the purchaser at the sale under the power had a perfect equitable claim to tlie property, as lie bad paid tbe amount of bis bid in full and bad been in possession for many years as owner. Tbe difference between tliat case and this one is manifest.

"When, for any reason, a sale of mortgaged property under an attempted foreclosure, whether by suit or under a power of sale, is ineffectual to cut off tbe mortgagor’s equity of redemption, tbe purchaser at such sale succeeds to the title and rights of tbe mortgagee in the property, and may enforce them as tbe mortgagee could have done, bad no sale taken place. Tbe receipt of tbe purchase-money by tbe mortgagee operates as an estoppel upon him to claim tbe benefit of tbe mortgage as against tbe purchaser. Taylor v. Agricultural & M. Assn. 68 Ala. 229; Jordan v. Sayre, 10 So. Rep. (Fla.) 823. Upon like considerations, tbe payment of a part of tbe amount bid at a sale' under a power in a mortgage, if tbe sale fails of consummation in consequence of tbe non-payment of tbe balance on tbe bid, operates in equity as an assignment of tbe mortgage debt to the extent of tbe amount 'paid, and to that extent entitles tbe bidder at tbe abortive sale to tbe benefits of tbe mortgage security. If such bidder at a sale which ivas never consummated takes possession of tbe mortgaged premises, his possession is that of a mortgagee before, foreclosure. He is, therefore, accountable for rents and profits.

Tbe decree of tbe Chancery Court is reversed, and tbe cause will be remanded for further proceeding in conformity with this opinion.

Reversed and remanded.  