86 Ala. 492 | Ala. | 1888
The distinction between a mortgage, or a deed of trust in the nature of a mortgage, to secure the of a particular debt or debts, and a deed of trust
In the case at bar, it is sought by judgment creditors of tbe grantors in a general assignment to redeem, under section 1883 of the Code, land which bad passed to tbe assignee, and bean sold and conveyed by him, in accordance with tbe terms of tbe assignment, for tbe benefit of creditors, among whom were tbe complainants. There are, to our mind, many reasons why this can not be done. As we have seen, every right and interest of tbe assignors in this land passed absolutely to tbe assignee, and was by him passed into tbe purchaser from whom this redemption is sought. Tbe title of tbe assignor was not incumbered with any equity or right of redemption whatever. This title passed through
The purpose of the redemption statutes of Alabama, as expressed in the caption of the original act, is “To prevent the sacrifice of real estate”, and the rights given by them are held to be for the benefit of the debtor. — Acts 1841-42, p. 8; Posey v. Pressly, 60 Ala. 250. This legislation proceeds on the theory, that property, which, either at law or in equity, belongs to the debtor, will, when subjected to forced sales, be sacrificed, and that a certain period after such sale should be allowed to him, and to his creditors, for his benefit, to secure to him its fair value. It is not apparent how this purpose of the statute, and these reasons which are the foundation of the right it gives, can have any force or application with respect to property in which the debtor, at the time of the sale, has no legal or equitable interest. There is, we apprehend, no distinction, which in principle can be drawn, between a conveyance to one for the benefit of many, and a conveyance directly to the beneficiaries, so far as the rights of the grantors are concerned. Certainly, no equity or right of redemption would have remained in the assignors here, had the fee-simple absolute title in this land been passed directly to their creditors, and
These considerations lead us to the conclusion, that the right of redemption given by the Code (§§ 1879-1891) does not attach to lands sold under an unconditional conveyance of the fee in trust for the payment of debts.
The decree of the chancellor, sustaining demurrers to the bill, is affirmed.