Francis v. White

| Ala. | Nov 15, 1904

SIMPSON, J.

This is a bill filed by appellee, as administrator of the estate of G. O. Sheats for the purpose of redeeming certain real estate, which was sold under executions, against said Sheats, in his lifetime, the appellant, Francis, being the purchaser, and appellants, Pointer and Campbell being purchasers, severally, of portions of said real estate.

The appeal is from the decree of the chancery court overruling the demurrer to the bill, and the motion to dismiss the same for want of equity.

Appellant’s brief discusses together assignments of error No. 4. 6, 7, 8, 15, 16 and 27, and is correct in the contention that the complainant’s rights depend upon a compliance with statutory requirements in regard to- the redemption of real estate. The right of redemption is a personal privilege, and, in order to avail himself of the right, the complainant must show “that he has not failed to do what-the law requires, in order to- invest him with the right he seeks to enforce,” or must show some valid reason for his failure in any particular. — Bank v. Brewer, 32 So. Rep, 602; Henderson v. Hamrick, 29 So. Rep. 924.

When the purchaser is absent from the State, a tender, to be sufficient, must be made by a deposit of the money in court, on the filing of the bill, and the absence of the purchaser or his vendee from the State excuses the tender in person and authorizes the filing of the bill. Beebe v. Baxton, 99 Ala. 117" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/beebe-v-buxton-6515170?utm_source=webapp" opinion_id="6515170">99 Ala. 117; Lehman, Durr & Co. v. Collins, 127, 132.

The bill alleges that “none of it wa,s in the actual possession of said C. C. Sheats, but such of it as was not bare and vacant and as was susceptible of actual posses-ion, was in the possession of tenants. If complainant is mistaken in this averment, he avers that no demand has ever been made for possession by the defendant Francis of the said C. C. Sheats, and that, if said C. C. Sheats remained or continued in the! possession, he did so, by and with the consent of the defendant Francis.”

' Where the purchaser made no demand for possession, the failure to demand is a valid reason for failing to deliver possession. — Baker v. Burdenshaw, 132 Ala. 166" court="Ala." date_filed="1902-02-13" href="https://app.midpage.ai/document/baker-v-burdeshaw-6519326?utm_source=webapp" opinion_id="6519326">132 Ala. 166; Hardin v. Collins, 35 So. Rep. 357; 138 Ala. 399" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/harden-v-collins-6520123?utm_source=webapp" opinion_id="6520123">138 Ala. 399.

The statute provides the course to pursue if the land is in possession of tenants. — Code, § 3506.

We hold that the averments of the bill were sufficient to dispense with the averment of delivery of possession on demand.

It is insisted tliat it is the duty of the party, seeking to redeem, to ascertain at his peril wha.t the lawful charges are, and to tender them, and that ignorance of improvements or their value, or of the lawful charges-will not excuse him, and in fact nothing will excuse him except the “conduct or agreement of the purchaser,” and that these words (used in the case of Spoor v. Phillips, 27 Ala. 197) mean that the purchaser must have been guilty of some positively wrongful conduct, or act, such a® misinforming the proposed redemptioner, and that the effect of the purchaser leaving the state relieves only from the necessity of making the tender in person, and not from the duty of ascertaining, at his peril, what the laAvful charges are. The Iuav does not require impossible things of any one.

The averment® of the bill show that Francis has absented himself from the State; that complainant has made diligent inquiry to ascertain his post office address, has Avritten to' him repeatedly asking for an account of the laAvful charges claimed by him to- haAre been paid, has also requested both of his vendees to inform him what laAvful charges are claimed by them and they have refused to give any information. Complainant has also made diligent inquiry as to laAvful charges, has tendered into court the amount of all that he has been able to ascertain, and offers to- pay all laAvful charges which maybe ascertained under the orders of the court.

This court, speaking through Chief Justice Brickell has said; “Upon the purchaser, or party in possession, claiming compensation for permanent improvements, rests the duty of informing the party coming to- redeem of the character and extent of the claim.”- — Cramer v. Watson, 73 Ala. 133; Prichard v. Sweeney, 109 Ala. 655.

The averments of the bill in this case show a sufficient tender of the laAvful charges. — Hardin v. Collins, 138 Ala. 399" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/harden-v-collins-6520123?utm_source=webapp" opinion_id="6520123">138 Ala. 399; Baker v. Burdenshaw, supra.

In the case of Long v. Slade, 121 Ala. 267" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/long-v-slade--farrish-6517952?utm_source=webapp" opinion_id="6517952">121 Ala. 267, referred to by appellant, there was no tender made in court at all; Avhile in the case at bar, the bill -shows that the purchase money and 10 per cent, and the amount of all the charges which complainant has been able to ascertain, with one omission hereinafter noted, have been deposited in court, and the bill offers to pay all charges which may be ascertained. The only things which prevent a fuil tender are the absence of Francis from the State (alleged in the bill to be for the very purpose of preventing a tender) and the refusal of the other defendants to give information.

Section 3517 of the Code refers only to the case where the “parties cannot agree upon the value of improvements,” which presupposes that they are informed as to Avhat the improvements are, and are Avilling to treat Avith each other as to their value, but when one party remains outside of the State and will not even communicate Avith the party proposing to redeem, and the others “refuse to entertain any proposition Avhat ever for compensation,” and refuse “to accept any payment” for “laAvful” charges there is nothing to appoint a referee for.

It is a general principle of laAV that “the law does not compel one to do vain or useless things. * * * * An actual tender of performance may be excused when there is a willingness and an ability to perform and actual performance has been prevented, or expressly waived by the parties to whom performance is due.” — 28 Am. & Eng. Ency. LaAV, (2d ed.), p. 5.

With regard to the $310.43 which the bill shows complainant has ascertained Avas paid for seAver tax on the property by said Francis, the averment, in the bill, of tender is not sufficient, in as much as it fails to aver that the amount is paid into court. — 21 Ency. Pl. & Pr. 565; Christian v. N. F. I. Co., 101 Ala. 642; Caldwell v. Smith, 77 Ala. 164; Booth v. Comegys, Minor, 201.

Eeferring to the 26th, 31st, 2nd and 1st assignments of error, which refer to the OAvnership of complainant’s intestate in the lands: “The levy of the execution on land as the property of the debtor, and its sale and purchase as such, are conclusive on the purchaser.” The allegations of the bill malee out a prima facie case in favor of the complainant, on that point, and if there be any facts to the contrary it is matter of defense.

It is next insisted by appellant that, as a prerequisite to the filing of the bill, in this case, the complainant must shoAV that he has made a tender, in accordance with the statute, and that, as the vendee is the party entitled to the redemption money, where property has been sold, the tender must have been made to both Campbell and Pointer (the purchasers of portions of the land) as well' as to the original purchaser, Francis, and that, as the statute has made no provision for pro rata payment, nor for redeeming any portion of the land less than the whole, therefore, the tender should be of the entire amount, necessary to redeem the Avhole, to each of the parties in interest, thus making it necessary, in this case, for the party proposing to redeem to tender three times the amount necessary to redeem the land. Then, if he tenders in this manner, each person can receive the amount tendered, and if they should prove to be insolvent, the debtor might lose two-thirds of his money, and by the operation of this kind of process, it would always be in the poAver of the purchaser at execution sale to absolutely deprive the debtor of the right of redemption which the statute gives him. Yet, the point is not Avithout difficulty, OAving to the fact that the law-makers do not seem to have anticipated just such a state of affairs as here exists, and Ave have not been able to find any case exactly in point.

Let us see then how the matter stands, according to our statutes: Sections 8505 and 3507 of our Code, certainly give to the judgment debtor the right to redeem the entire tract of land by paying “the purchase money with ten per cent per annum thereon, and all laAvful charges,” and it is not in the power of the purchaser or any one el -e io deprive him of that right, and, according to avoII recognized principles of equity, if, by the act of the purchaser himself, matters have been so adjusted that the debtor cannot comply with the statute by tendering the required money, in accordance with the statute, then said purchaser is estopped from complaining that such tender has not been made.

We have then here an absolute right without any remedy provided by laAv: The complainant has the right, under the statute to redeem all of the land by paying once, Avhat the statute requires, and yet he cannot malee the payment, because the purchaser has absented himself from the State, and has conveyed parcels of the land to Campbell and Pointer. He has no right to pay to either of them, that part of the redemption money which belongs to the other, and yet he has no authority to apportion it and redeem the parcels separately. Is not this then, according' to the first principles of equity jurisprudence, a case which suggests the resort to a court of equity?.

Upon these very grounds he comes into a court of equity, pays the money, which the law requires, into court, and asks the court to distribute it to the parties according to their interests and rights, and further offers to do and pay whatever, in addition thereto may be just and equitable, in the estimation of the court.

It certainly then cannot be urged against his right to invoke the aid of a court of equity, that he did not previously do the thing which he could not do, and his inability to do which formed the ground of his right to come into equity.

In the Baker v. Burdenshaw case, supra, this court held that if “a proper tender is rendered impracticable, by the act of the person to whom it is due, that fact will, on proper averments, be sufficient to excuse a failure to tender.” — p. 168. There was no error in overruling causes of demurrer numbered 9 and 10.

Complainant Avent to Campbell and Pointer, and offered to pay them not only their proportion of the purchase money with 10 per cent, but also for all permanent improvements and hnvful charges, and they refused to give him any information and refused to receiAe compensation. This absolved him from any further duty in regard to those matters. — Cramer v. Watson and Prichard v. Sweeney, supra.

What has been said disposes also of assignments 11, 12, 13 and 14, AAdiich are not sustained.

The 22nd assignment of error raises the point that the cost of executing the deed should have been included in the tender and should have been paid into court.

When the complainant offered to pay all lawful charges and asked for information as to their amount, this item should have been included with others, but one defendant refused to communicate with him and the other's refused absolutely to treat with him or receive any thing, and when he files his hill in court it is not necessary to malee a deposit of this small amount, as the conveyance will he made under the orders of the court and the amount will become a part of the court costs.

There was no error in the court’s overruling the motion to dismiss the bill for want of equity, as the law presumes all amendable defects to be amended, on this motion, and the matter which has been pointed out, in which the demurrer was well taken would not justify the court in dismissing the bill for want of equity.

The matter of the payment of costs rests within the discretion of the courts. — Falkner v. Campbell Printing etc. Co., 74 Ala. 360, 364; Allen v. Lewis, 74 Ala. 379" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/allen-v-lewis-6511749?utm_source=webapp" opinion_id="6511749">74 Ala. 379; Gray v. Gray, 15 Ala. 779" court="Ala." date_filed="1849-01-15" href="https://app.midpage.ai/document/gray-v-gray-6503956?utm_source=webapp" opinion_id="6503956">15 Ala. 779.

The decrecí of the court, in so far as it overruled the motion to dismiss the bill for want of equity, is affirmed, but, for the error in failing to sustain the cause of demurrer stated, the case is reversed, and a decree will be here entered sustaining the demurrer, and the cause is remanded.

Affirmed in part and, in part, reversed, rendered and remanded.

McClellan^ C. J. Tyson and Anderson, J. J., concurring.