This is an appeal from the Covington County Circuit Court, in Equity, from a ruling of the court overruling demurrers to the bill of complaint as last amended.
Complainants are the children and heirs at law of Henry Barnes, deceased, and the respondent is the W. T. Smith Lumber Company.
The bill as last amended shows that on January 13, 1914 one William M. Barnes and wife executed a mortgage on one hundred acres of land to George M. Foreman to secure the payment of $700 and interest. In October 1919 William M. Barnes and wife conveyed all their interest in the property to Henry Barnes, subject to a $500 mortgage in favor of Foreman. Henry Barnes took possession of the property and he and his family resided on it as their homestead. Henry Barnes died intestate in 1921, and this property was all the real estate that he owned, did not exceed one hundred and sixty acres in area, and did not exceed $2,000 in value. He left surviving him his widow, Carrie Barnes, and five minor children, whose ages at that time ranged from eleven years to one year. The lands were never set apart to the widow and minor children or to either or any of them as a homestead. There was no administration of the estate of Henry Barnes, deceased, nor has there been a judicial determination of the insolvency of said estate.
The law date of the note, which was secured by the mortgage, was January 13, 1924. On July 14, 1925, George N. Foreman
The bill alleged that the value of the timber cut and removed by respondent in 1925 equaled or exceeded $580 and paid and discharged the debt in full, and that as remaindermen they were entitled to the timber and the growth thereon from 1925 until 1935; that the foreclosure sale is voidable and irregular in that the terms of the mortgage were not followed in the foreclosure sale. That Mrs. Barnes and complainants relied on respondent to treat them right, but respondent took advantage of their ignorance, took the timber in 1925, and let the debt run until 1935 before they effected an invalid foreclosure under the cloak of fraud. The bill further alleged that the foreclosure was void; that the deed made by respondent to respondent by virtue of said foreclosure constitutes a cloud on their title; that the life estate in said land is still outstanding in Mrs. Carrie Barnes Ballard, widow of Henry Barnes, deceased; that since she is still alive, complainants are not entitled to present possession of the land and as a consequence have no adequate remedy at law to protect their remainder interest in said land and their interest may be destroyed by a lapse of twenty years from the date of said void foreclosure, unless the cloud is removed from their title.
Complainants prayed for a decree that the mortgage debt was paid in full or had been paid in full prior to the foreclosure in 1935; that the foreclosure sale was completely void, and that the foreclosure deed is a cloud on complainants' remainder interests, and that the same be cancelled and held for naught.
The respondent demurred to the bill on the following grounds:
"1. There is no equity in the bill as last amended.
The court overruled the demurrers, and respondent appealed.
It will be noted that when the timber was removed in 1925, the age of the oldest complainant was fifteen, the age of the youngest five. When the family moved away from the property in 1936, after the foreclosure sale and after the tax sale, three of the children were twenty-one years of age or over, one nineteen and one sixteen. In 1941 the youngest child became twenty-one years of age. The bill in this cause was filed in 1952, eleven years later.
Here, the alleged fraud, the alleged trespass in cutting the timber, and the alleged payment of the mortgage took place in 1925, more than twenty-five years before the filing of the bill. Considered alone, these acts would be barred by the rule of prescription. "Since an early period in this state, prescription has been in force, created by the chancery court as a rule of repose, and it is thus stated in McArthur v. Carrie's Adm'r, 32 Ala. 75, 88, 89, 70 Am.Dec. 529, by Stone, J.: `In this, as in most of the States of this Union, there is a growing disposition to fix a period, beyond which human transactions shall not be open to judicial investigation, even in cases for which no statutory limitation has been provided. * * * By common consent, twenty years have been agreed on, as a time at the end of which many of the most solemn transactions will be presumed to be settled and closed.'" Wilkerson v. Wilkerson, 230 Ala. 567, 571, 161 So. 820, 822.
But assuming, without conceding, that there was no discovery of any claim by respondent to the land in 1925, we next come to 1935, with the foreclosure sale in April, and the tax sale in October. That was followed in 1936 by the moving away of complainants, three of whom were twenty-one years of age or older, the respondent going into possession and the tearing down of the home located on the lands. If there had been no notice or discovery prior to 1936, there was ample reason then to know of appellants' claim to the lands. We agree with the trial court that the allegations of the bill and the exhibits attached thereto "show that the mortgage foreclosure met all legal requirements with respect thereto".
On original consideration we perhaps did not fully treat all the matters insisted on by appellees and we therefore withdraw the remainder of that opinion and substitute the following.
As already stated complainants allege that the foreclosure was voidable, or in the alternative, void. If voidable, the decisions fix two years as a reasonable time for a mortgagor to elect to disaffirm the sale, and, until disaffirmed, the foreclosure stands and cuts off the right of redemption. Alexander v. Hill, 88 Ala. 487, 7 So. 238. But as to infant heirs of the mortgagor, if the mortgagor was dead at the time the sale was made, they are, by analogy, allowed two years after they attain their majority to disaffirm it, and the consequent right to redeem upon such disaffirmance. But the law requires diligence of the mortgagor, or those holding under him, in the assertion of this right, and, in the absence of special circumstances, holds him to have waived the right, and to have affirmed the sale, unless he elects to the contrary within two years. First National Bank of Opp v. Wise, 235 Ala. 124, 177 So. 636; Canty v. Bixler, 185 Ala. 109, 64 So. 583.
Here the bill shows affirmatively that all the children of Henry Barnes, deceased, were over twenty-four years of age when the bill was filed.
The main allegation relied upon by complainants, and the one upon which the lower court sustained the bill, was that the foreclosure sale in 1935 was void because the mortgage debt had been paid prior to foreclosure.
And further in the opinion it was said:
In Stockdale v. Cooper, 193 Ala. 258, 69 So. 110, 111, the Court, speaking through Anderson, C. J., said:
The mere fact that a bill alleges that a foreclosure was void does not necessarily give equity to the bill. In both Rudisill v. Buckner, 244 Ala. 653, 15 So.2d 333, and Jones v. Caraway, 205 Ala. 327, 87 So. 820, complainants alleged a void foreclosure, but in each instance demurrers were sustained.
Complainants here were chargeable with notice of the mortgage because their father was the vendee of the mortgagor and he purchased subject to the mortgage. The bill shows on its face that respondent went into possession under the foreclosure in 1936 and for aught appearing has been in possession since that time. Complainants took no action until 1952,—a delay of seventeen years from the foreclosure and sixteen years from the entry of the possession on the part of respondent.
Counsel for complainants in their excellent brief insist that the only real issue in the case is that complainants as remaindermen have twenty years to redeem from a void foreclosure sale, especially in the event the life estate is still outstanding, and they cite many cases to support this principle.
In this State the Court realized that there should be some relaxation or exception to this rule, and since 1888 when the Court rendered the decision of Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197, this Court has said that a remainderman not in possession and with no right to the immediate possession must under some circumstances file a bill to remove a cloud from his remainder estate during the life of the life tenant to escape a charge of laches. This principle has now become the settled law in this State, and is distinguishable from the many cases which hold that the remainderman is under no duty to act until the termination of the life estate when the life tenant has attempted to convey the fee.
Here these complainants are seeking the enforcement of an equitable right upon the establishment of which their title and interest depend. The enforcement of this equitable right was available to them from the time of the foreclosure and the taking of possession by the respondent, and the respondent's possession was adverse to them even though the life tenant was still alive.
Many of our cases define laches. In Ussery v. Darrow, 238 Ala. 67, 188 So. 885, 888, it is said:
In Wragg v. City of Montgomery, 245 Ala. 362, 17 So.2d 173, 174, the Court said:
Appellees admit that they have no statutory right of redemption under the decision in Land v. Cooper, 244 Ala. 141, 12 So.2d 410.
The reason for the application of the rule of laches in cases of this kind is well stated in Randolph v. Vails, 180 Ala. 82, 60 So. 159, 164, where the court sustained a demurrer to the bill filed nine years after the sale instead of seventeen years as here. We quote from the opinion in that case:
We think the circuit court erred in overruling the demurrers to the bill of complaint which pointed out laches, and for that reason the cause should be reversed and remanded.
Original opinion withdrawn in part and this opinion substituted.
Reversed and remanded, and application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.