Lyon v. Elliott, adm'rx, 3 Ala. 654

ORMOND, J. In the case of Creighton v. Paine, 2 Ala. Rep. we held, that in a controversy between the purchaser at a mortgage sale, and one claiming the property, it was improper to prosecute an appeal against the complainant, who was passive, but that it must be prosecuted against the actor, who, in that case, was the purchaser. If the bill in this case, had disclosed, that the suit was instituted for the benefit of Mrs. Elliott, the question here raised would have been distinctly presented on the record, or it might have been presented by petition filed afterwards.

But although the whole proceeding is certainly very irregular, we cannot understand the reference made, as it appears, by consent, for the purpose of ascertaining the interest of Mrs. Elliott, as any thing else than an admission of record, that the suit was prosecuted for the benefit of Mrs. Elliott as administratrix of John Elliott. She certainly is a most efficient actor in the cause, as it is on her motion that an attachment is issued.

If this inference is not made, it will follow that every step taken in the cause, at her instance, and for her benefit, is irregular and void, as without this presumption, she is a stranger to the record. It would be a most extraordinary procedure if any attachment could issue at the instance of a stranger to the suit, to compel the payment of money to her, which, in co ntemplation of law, is in the hands of the person entitled to it. Considering then, as we must do, Mrs.

Elliott a party to the record, as she was doubtless considered by the Chancellor, we proceed to the consideration of the case, as disclosed by the record, which presents this state of facts. The complainants, four in number, and one John Elliott, were purchasers of a tract of land, and in consequence of his death, and to avoid difficulty, took the title in their own names. The land was divided into lots and sold, a portion being bought by Schuyler, whose heirs are the defendants to the bill, and the note upon which this bill is predicated, was the share of Elliott. That the attorney of Mrs.

Elliott applied to the plaintiff in error, who was one of the complainants, for information, who informed him that the mortgage foreclosed in this case, was taken to secure this note, and that thereupon he filed his bill. At the sale by the master, the plaintiff in error, was the purchaser, but refused afterwards to pay the purchase money, alleging that the property had been perviously sold under another mortgage; and also, that there was an outstanding mortgage in favor of the Bank of the State of Alabama, which was not made a party to the bill.

These facts appear principally in the affidavit made by the plaintiff in error, and the counsel for the defendant in error on a motion for an attachment, and in resistance of it. In Littell v. Zuntz, 2 Ala. Rep. 256, a question somewhat similar to this, was presented to this Court, in relation to opening the biddings at a mortgage sale.

The Court then say that <( the right to set aside a sale, made by order of a Court of Chancery, where a proper case is presented, must of necessity be an attribute of that Court, as the same power is exercised by a Court of law where its process has been abused, and the power of a Court of Chancery cannot be inferior.” The question presented to the Court in this case, is in effect, Whether the sale made by the master was valid.

It is admitted in the affidavit of the counsel for the defendant in error, that the plaintiff in error had previously foreclosed the mortgage in this case, it is therefore obvious that no right was acquired by the plaintiff in error by the purchase made under the foreclosure in this case. A distinction in cases like the present, may exist between a purchase made by a stranger and one made by a party to the record, who must be presumed to be cognizant of the facts of the case, and might be concluded from denying it.

However the law might be in such a case, here, although the purchaser is one of the complainants, it is shown thqt the suit was not instituted by him, nor for his benefit, and for all the purposes of this inquiry, he must be considered a stfánger to the proceedings. It is true, it is stated that upon application of the counsel of Mrs.

Elliott, “ he pointed out the said mortgage on the record of the Court, and led applicant to believe that it was a just, true and subsisting mortgage, and afterwards admitted the same in his letter to the register;” but it does not appear that this false information was fraudulently given. On'the contrary, it is evident that it was an honest mistake, as is conclusively shown by his becoming the purchaser himself.

Neither is the defendant in error free from blame — it wásjthe duty of her counsel to have been satisfied that he was proceeding on the right mortgage, a fact which could doubtless have been ascertained by proper diligence.

At law, giving false information, or even the assertion of a falsehood, unless coupled with fraud, will not be the foundation of an action, even where positive injury has been caused to another by it; and certainly, under the more enlarged and benignant principles of equity, it could not be tolerated that a mere false assertion, without fraud, should subject a party to a loss, especially in a case where the only injury inflicted thereby, is the delay and expense of another suit.

We are therefore of opinion that the attachment was improperly awarded, and the decree of the Chancellor, to that effect, must be reversed. This is not considered a proper case for costs, as both parties seem to be equally in fault, each will therefore pay his own costs both in this Court, and the Court below.