246 F. 265 | M.D. Ala. | 1917
District Judge. On April 29, 1916, J. W. Weldon and wife, to secure a loan of $2,500 made to them by the Connecticut General Life Insurance Company, a corporation and citizen of Connecticut, executed a mortgage to that company on certain land owned by them in Chilton county, Ala., and described in the mortgage as follows: S. W. % of S. W. y4, Sec. 1; N. % of S. %, Sec. 2; W. % of N. W. yé, Sec. 12; N. W. % of S. W. %, Sec. 12; and S. y¡ of N. W. y4, Sec. 2, all in township 20, range 13 — and the land was further described, to quote the language of the mortgage, “known as the ‘Home Place’ of J. W. Weldon, and each and every part of said place is hereby conveyed whether particularly described or not, and all of the lands now owned by the said J. W. Weldon in Chilton county are hereby conveyed.” The mortgage was duly recorded. Default having been made in the payment of some of the interest notes, the plaintiff elected to consider all of the debt due, as was provided in the mortgage,,and foreclosed said mortgage by sale under the power in the mortgage. Accordingly, after due advertisement, the lands were sold on January 9, 1917. The mortgagee, the plaintiff, became the purchaser at the mortgage sale and received a deed in pursuance of the sale. Demand in writing was then made upon Weldon and-his wife for the possession of the lands. They surrendered possession of the 400 acres of land described by number in the mortgage, but possession of 40 acres, the S. E. y4 of the .S. E. x/4, Sec. 2, Tp. 20, R. 13, which was their homestead and occupied by them as such and which 40 acres was not described by numbers in the-mortgage, was withheld from and refused the plaintiff, Weldon alleging that this 40 acres was not included in the mortgage. The plaintiff then filed its bill in this court against the defendants, Weldon and wife, the mortgagors. The bill primarily seeks to quiet plaintiff’s title to the 400 acres which it is now in possession of against any statutory right of redemption in the Weldons; plaintiff alleging that the defendants, by failing to surrender the entire .tract of land within ten days after demand in writing, forfeited all right to redeem said land under the,statutes of Alabama. Incidentally the bill seeks to recover the 40 acres of land, the possession of which is unlawfully retained by Weldon. Damages for its detention are also sought. The defendants in their answer, as amended, to the bill insist that the value of the 40 acres which they retain is only $600, and hence not within the jurisdiction. of the court, and .that the value of this disputed 40 acres is the only matter
“ Where real estate, or any interest therein, is sold under execution, or by virtue of any decree in chancery, or under any deed of trust, or power of sale in a mortgage, the same may he redeemed by the debtor, his vendee, junior mortgagee, or assignee of the equity or statutory right of redemption, wife, widow, child, heir at law, devisee, or his vendee or assignee of the right to redeem under this Code, from the purchaser, or his vendee, within two years thereafter in manner following.” (Italics supplied.)
“In manner following” is indicated by the next section of the Code (section 5747), which declares:
“The possession of the land must he delivered to the purchaser, within ten days after the sale thereof, by the debtor, if in his possession, * * * on written demand of the purchaser or his vendee. * * * ”
“Tlie statute makes it a condition precedent to redemption, tliat tlie debtor must, within ten days after the sale, have delivered possession of the property sold to the purchaser on his demand or that of his vendee. Unless the debtor remains in possession after such demand as the tenant of the purchaser, a failure to deliver possession in the time prescribed forfeits the right of redemption. Stocks v. Young, 67 Ala. 341.”
This is the law to-day. However, since the Code of 1907, § 5747, quoted above, the demand for possession must be in writing. Hutchison v. Flowers, 175 Ala. 651, 57 South. 719. The surrender of possession, upon written demand after sale, is a condition precedent to redemption; unless this condition is performed the right of redemption does not accrue. Stocks v. Young, supra; Sandford v. Ochtalomi, 23 Ala. 669; Paulling v. Meade, 23 Ala. 505; Baker v. Burdeshaw, 132 Ala. 166, 31 South. 497.
“It is upon tbe party seeking to avail bimself of the right of redemption, to allege and prove the statutory delivery of possession. Precisely what constitutes such delivery has, it is believed, never been defined; nor is it our purpose to enter upon definition now, further than is necessary to meet the facts of this case. Of course, there can be no doubt that the statute means actual possession. It would seem to follow, too, that the delivery must be the ‘clear possession,’ as it is sometimes called, to the exclusion of every other, person; the same as a sheriff would give on a writ of habere facias posses-sionem. This would involve the removal from the premises of the personal property of the debtor, and of his household, the members of his family, his servants, and all persons on the land, through family or contract relations to him, except only his tenants, who, by another provision of the statute, are*269 allowed to remain as the tenants of the purchaser. Excepting, however, tenants, who are thus specially provided for, we apprehend that the statute is not complied with, the delivery of possession required by it not accomplished, unless and until there is such termination of occupancy on the part of the debtor, his family and household, in their persons and effects, as will admit of the peaceable entry, and quiet, unrestricted, and unobstructed possession and use, of the purchaser.”
. “Ol course, it is a familiar principle that, wben a court of equity once acquires jurisdiction of a particular subject-matter and over particular parties, it will not determine tbe cáse by piecemeal, but will settle tbe whole*270 ¡controversy and will not remit the parties to any other forum for any part of their appropriate relief.” , • ,
- Tills principle is thoroughly settled. Having determined that Weldon illegally retains possession of the S. E. % of the S. E. %, Sec. 2, Tp. 20, R. 13, the court is of opinion that he should not be left in possession and the plaintiff forced to bring another suit in some other forum.- The equitable' jurisdiction of the court is clear to afford entire relief in one suit. Equity abhors .a multiplicity of suits and will settle all suits ‘about one matter in one suit wherever possible. Enterprise Lmbr. Co', v.' First Nat. Bk., 181 Ala. 388, 61 South. 930. The plaintiff, here is entitled to have complete justice done it in one suit. Under the facts of this case plaintiff has the legal title to this disputed 40 acres. Weldon should not be left in its wrongful possession-.
' "A decree will be rendered in favor of the plaintiff granting the relief prayed for in the bill.