[Thomas v. Jones.] redemption which was cut off by the mortgage sale and purchased in by the trustee, and, therefore, had a right to avoid the sale by the bill filed to redeem in proper time.-Downs v. Hopkins, 65 Ala. 508; Ezzell v. Watson, 83 Ala. 120; 2 Jones on Mortg., § 1876. This is not a case of the exercise of the statutory right of redemption. If it were, and any other person than the mortgagee himself were the purchaser, under the rule declared in Powers v. Andrews, 84 Ala. 289, and other cases following that decision, the bill would be entirely devoid of equity, on the ground that an assignee of the equity of redemption can not redeem under the statute after a valid foreclosure of the mortgage, either under a decree of a court of chancery, or under a power of sale contained in the instrument. But the rule is clearly settled to be otherwise where the mortgagee, when unauthorized, purchases at his own sale. Not that the sale, so long as it is permitted to stand, is ineffectual to cut off the equity of redemption, for such is undoubtedly its legal effect. But the court, construing the transaction as a fraud on the rights of a cestui que trust by the trustee, will set aside the sale at the request of the injured party who files his bill to redeem within a reasonable time, offering to do equity. When the sale is thus set aside the complainant's equity of redemption is restored to its original status, subject only to the lawful charges incident to redemption, but otherwise it is completely disembarrassed of the sale. 3. The offer made in the bill to pay all that might be found due, on the taking of the account prayed, was clearly sufficient. An averment of a tender before the filing of the bill is only material as affecting the question of costs, and is not essential to the equity of the bill.-McGuire v. Van Pell, 55 Ala. 344; Adams v. Sayre, 70 Ala. 318. 4. The court properly disallowed the item of twenty-five dollars claimed for an attorney's fee expended in foreclosing the mortgage under the power. The mortgage did not specially authorize such a charge, and the term "expenses of sale," occurring in the mortgage, would include nothing more than the ordinary expenses or costs of foreclosure, not extraordinary charges, such as attorney's fees for services rendered in making the foreclosure. We discover no error in the record, and the decree is Affirmed. VOL. LXXXIV, [Hanna v. Steele.] Hanna v. Steele. Bill in Equity to Redeem Land sold under Execution by Sheriff. 1. Sale of undivided interest in land under execution; right of purchaser to possession.-Where an undivided half interest in land has been sold under execution and purchaser makes demand of possession, he is not entitled to the sole possession of the property.-Code, 1886, § 1880. 2. Same; bill in equity to redeem.-Where an undivided half interest in land has been sold under execution, and the debtor offers to give possession of such half interest, but refuses to deliver the other half interest claimed by the purchaser under another source of title, this is a sufficient delivery by the debtor to entitle him, on tendering the purchase money, with ten per cent. per annum thereon, and all other lawful charges, to redeem the interest sold.-Code of 1886, § 1881. APPEAL from DeKalb Chancery Court. Heard before Hon. THOMAS COBBS. The appellee, Steele, filled this bill to redeem certain real estate sold by the sheriff. Upon a portion of the land levy had been made on the entire interest therein; on the other portion, levy was made on an undivided interest. The purchaser demanded possession of the entire interest in all the lands so sold, claiming that the undivided interest not sold was his from another source of title than that obtained at the sheriff's sale, and about which there was a controversy between himself and appellee. Appellee surrendered the portion, the entire interest in which had been sold, and offered to give joint possession of that portion, the undivided interest of which had been sold. The appellee's right to redeem that property which was sold by the sheriff, is the question determined in the opinion. The chancellor, on final hearing, decreed that the appellee was entitled to redeem. SAMUEL F. RICE and L. A. DOBBS, for appellant. R. A. DUNLAP, contra. CLOPTON, J.-A bill to redeem land sold under an execution must allege that possession was delivered to the pur [Hanna v. Steele.] chaser within ten days after the sale on his demand, and also that the debtor paid, or tendered to the purchaser the purchase money with ten per cent. per annum thereon, and all other lawful charges. Code, 1886, §§ 1880, 1881; Stocks v. Young, 67 Ala. 341. These facts are distinctly alleged in the present bill, and the evidence establishes a sufficient tender. The only question really controverted is, whether possession was delivered to the purchaser as required by the statute. The entire interest in a part, and an undivided interest in another part of the lands were levied on. At the time of the sale by the sheriff, the complainant, who was the defendant in execution, was in possession claiming the entire estate in all the lands, and was living in a house situated on that part of the land, of which only an undivided half interest was levied on and sold. Complainant delivered possession of that part of land, the entire estate in which was sold, and offered to admit the defendant, who was the purchaser, into joint possession of the part of which an undivided half interest was sold; but defendant demanded that complainant should move out of the house, and deliver sole possession of the entire lands. There was a controversy between complainant and defendant as to the title to the half interest not levied on and sold. A purchaser at an execution sale of land, acquires no greater or other interest therein, than is levied on. If the levy is general upon the entire estate all the right and title of the defendant in execution passes to the purchaser by the sale and the sheriff's deed; but if the levy is upon a partial, or limited and defined interest an undivided half interest this is an equivalent of a negation that the entire estate and interest is levied on; and in such case, the purchaser only acquires the undivided half interest. If the complainant had title or estate in the other half interest, he was not divested thereof by the levy, sale and sheriff's conveyance.-Carrington v. Richardson, 79 Ala. 101. The defendant as purchaser was only entitled to the possession of the estate or interest which was levied on and sold, which is all he could recover in an action of ejectment. It was not intended by the statute to require the debtor, as a precedent condition to redemption, to deliver possession of any land, or interest in land, not levied on. On a bill by a debtor to redeem, a court of equity will not suffer itself to be made an instrument to try and determine disputed and controverted titles or claims; nor will it require the debtor [Boutwell v. Steiner.] to deprive himself of the vantage ground of possession, on which to try his right to an estate or interest, of which he was not divested by the levy and sale. The complainant offered to deliver to the defendant all the possession which he was entitle to demand. Affirmed. Boutwell v. Steiner. Bill to Foreclose Mortgage on Lands. 1. Parties to bill for foreclosure.-The mortgagor is not a necessary party to a bill for foreclosure, filed against a purchaser, or assignee, to whom he has sold and conveyed his entire interest in the lands, which is only an equity of redemption. 2. Limitation of bill to foreclose, as in favor of purchaser from mortgagor.-When a mortgage has been duly recorded, a purchaser from the mortgagor is charged with notice of it; and a bill to foreclose the mortgage is not barred, as in his favor, until after the lapse of ten years from the commencement of his possession as purchaser. 3. Conclusiveness of chancery decree.-A mortgagee of the husband, not having been made a party to a bill filed by the wife to establish a resulting trust in the lands, he is not concluded or in any manner prejudiced by a decree therein rendered in her favor. 4. Purchase by mortgagee at his own sale; when and by whom avoided. When a mortgagee purchases personal property, at his own sale under a power in the mortgage, and the mortgagor never seeks to avoid the sale, a subsequent purchaser from him can not object to it, under a bill to foreclose the mortgage on land filed nine years afterwards. 5. Costs and expenses of foreclosure, under stipulation in mortgage. A stipulation in a mortgage, binding the mortgagor to pay the costs of recording the mortgage, and all the costs and expenses attending the enforced collection of the mortgage debt, is binding on an assignee or purchaser from the mortgagor, and may be enforced under bill to foreclose, on statement of the account. APPEAL from Butler Chancery Court. Heard before Hon. THOS. W. COLEMAN. The bill was filed by appellee, and mortgagee, Steiner against Burt Boutwell and wife, to foreclose mortgage on lands. The mortgage was executed by John F. Hinson, January 9, 1873, and was duly recorded. In June, 1873, Elizabeth Hinson filed her bill against her husband, John F. Hinson, setting up that the land (mortgaged to Steiner) was purchased with her money; and in October, 1873, according to the prayer of her bill, the chancellor decreed that the title to said land be divested out of John F. Hinson and vest in 84 307 120 218 [Boutwell v. Steiner.] her, Elizabeth. Steiner was not made a party to this bill. Elizabeth Hinson and her husband took possession, lived on the land, and in January, 1877, they conveyed the property to Burt Boutwell and wife, F. M. Boutwell. All other facts sufficiently appear in the opinion. GAMBLE & RICHARDSON, for appellant.-John F. Hinson should have been made party defendant.-Jones on Chat. Mort. 783; 35 Ind. 467; 10 Iowa, 459; 15 Iowa, 470; 81 Ala. 494; 2 Jones on Mort. § 1394 et seq. Complainant was not entitled to relief.-Jones on Chat. Mort. SS 711, 806; 72 Ala. 361; 39 Ala. 204. On the motion to dismiss appeal, cited 81 Ala. 98; Ib. 100; 51 Ala. 559. R. E. STEINER, contra.-Error can not be assigned on decree of August, 1886.-Cochran v. Miller, 74 Ala. 50-63. Hinson was not a necessary party.-5 Ala. 158. The objection to sale of personal property was too late. SOMERVILLE, J.--1. The mortgagor, Hinson, having unconditionally sold and conveyed to the appellant Boutwell his entire interest in the land, being a mere equity of redemption, he was not a necessary party to the present suit, the purpose of which is to foreclose the mortgage lien. His assignee only need be made a party defendant.-Batre v. Auze, 5 Ala. 173; Wilkinson v. May, 69 Ala. 33; Barbour on Parties, 463; Story's Eq. Pl. § 197. 2. The mortgage having been recorded in the proper county before Boutwell purchased the land, he was charged with a knowledge of the lien created by it. His possession under the purchase could not mature into a good title, under the operation of the statute of limitations, short of ten years. Smith v. Gillam, 80 Ala. 296; State v. Conner, 69 Ala. 212. This period of time did not elapse between the possession taken under the sale and the filing of the present bill. 3. The appellee never having been made a party to the bill filed by Mrs. Hinson against her husband, by which she set up a resulting trust in the mortgaged lands, is in no manner prejudiced by the decree rendered in that case. Owen v. Bankhead, 76 Ala. 143. The demurrer to the original bill, raising these points, was properly overruled, even admitting the appellant's right to assign errors on the decree rendered August 30th, 1886. That decree, we are inclined to think, however, is final, and |