Francis v. White

49 So. 334 | Ala. | 1909

MAYFIELD, J.

By the bill the complainant seeks to exercise the statutory right of redemption under chapter 133 of the Gode of 1907 (section 5746 et seq.). The property involved consists of town lots and unplatted property in or. near the town of Decatur, all of which was sold under execution against G. C. Sheats, the intestate of B. B. White, the redemptioner, and was purchased at execution sale by W. B. Francis, who has since conveyed parts thereof to the other respondents. The whole was sold together, and the bill seeks to redeem the whole.

Redemption cannot be effected by piecemeal. It must be of the entire tract sold, no matter how many the sub-purchasers of parts thereof. — Roulhac v. Jones, 78 Ala. 398; Harden v. Collins, 138 Ala. 404, 35 South. 357, 100 Am. St. Rep. 42. As the statute confers a mere right or privilege upon the debtor, he must conform to the requirements of the statute by delivering possession to the purchaser, and by the payment or tender of the purchase price together, with 10 per centum per annum thereon, and all lawful charges, and must pay to the person in possession the value of all the permanent improvements. The statute directs how the amount of the value of the permanent improvements may be determined. These are all made conditions precedent to redemption, or revesting of the title in the debtor. The statute however, contemplates that the redemption be perfected out of court between the parties by each party’s doing that which the statute directs. A resort to equity is only necessary when the purchaser or creditor refuses to accept the tender and to convey, and declines to inform the debtor of the amount necessary to be tendered, when known to him and not to the debtor, or when it is impossible or impracticable for the debtor to conform to the requirements of the statute without the aid of a court of equity. If the debtor could be sure that he had paid or tendered all that the statute requires, this payment or tender would have the effect, under the very language of the statute, to reinvest him with the title, and the purchaser must reconvey to him.- — Code 1896, § 3507. It is most often the case that resort is had to equity to perfect the statutory right, because without the aid of the court the debtor cannot know the exact amount necessary to be paid or tendered. The main object of the bill is often to ascertain this fact. If the debtor knows the exact amount which he must pay or tender, or if by the exercise of due diligence he can ascertain it without the aid of the court, then his bill for this purpose would be without equity. Equity will not undertake to do that which the debtor should have done for himself. So, in the bill to redeem under the statute, the debtor must either aver a payment or a tender of all the amounts by the statute required, or to show a valid excuse for failure therein, before filing, such as nonresidency of purchaser, or redemptioner’s inability to ascertain the amounts necessary to be paid or tendered, and ask the court to aid him in ascertaining the true amounts and offer to pay such amounts before insisting upon his right to redeem or to be reinvested with the title.— Francis v. White, 142 Ala. 590, 39 South. 174. Payment or tender of the amounts necessary to redeem is not in all cases a prerequisite to the filing or maintaining of the bill, yet it is always such to the perfection of the right to redeem, and the bill must offer to pay or tender such amounts when ascertained, and show á valid excuse for not so doing before the filing of the bill as well as a good reason why the aid of the court is necessary for this special purpose.

The bill in this case we think conforms to all the requirements necessary for a bill to redeem under the statute. The complainant offers to pay every dollar which the statute requires as a condition precedent to the exercise of the right to redeem under the statute. If the averments of the bill he true, the amount of the lawful charges could not be ascertained without the aid of the court or of the respondents, and it shows that the respondents refused to aid complainant, or to inform him of the true and exact amounts. If the averments of the bill be true, • without the aid of the court the complainant would lose his right to redeem, but with such aid he can assert and enforce it, and he offers to pay the exact amounts which the statute and the court direct him to pay, before claiming any right to redeem. This is all that the law requires or ought to require. The rights and duties of the debtor, creditor, or purchaser under the statute are reciprocal. The purchaser cannot, by his mere failure or refusal to perform the duties imposed upon him by the statute or by inaction, prevent the debtor from performing his, and thus cause the debtor to lose his statutory right of redemption. Equity has the jurisdiction and the power to compel both to discharge those duties imposed by the statute, and will aid either party to enforce his rights thereunder. —Baker v. Burdeshaw, 132 Ala. 166, 31 South. 497; Prichard v. Sweeney, 109 Ala. 651, 19 South. 730; Lehman-Durr Co. v. Collins, 69 Ala. 127.

The pleas were wholly insufficient. Though every word therein contained he true, the complainant will be entitled to relief upon proof of the averments of his bill and the performance of his offers therein contained. If the amounts set up in the special pleas are lawful charges, they must be paid before the complainant redeems. The complainant in his amended hill clearly avers a good reason why these amounts were not paid or tendered before the filing of the bill. It shows that actual performance on the debtor’s part was prevented or waived by the party to whom performance was due. The respondents cannot be injured under the averments of this bill. The complainant must pay every cent due them before the title will vest in him. He could not and cannot now redeem without the aid of the court. He may do so by the aid of the court. He asks not to avoid any duty, nor does he seek by his bill to deprive the respondents of ¡any right. The pleas assume to go to the equity of the whole bill, and yet answer only a part thereof. The chancellor very properly held that such pleas were insufficient. Any number of conditions may be supposed which will avoid the pleas if true, and not contradict them. The heirs of Sheats, the execution debtor, may have paid all' the lawful charges against the lands. They were the proper parties to pay them, and this would he perfectly consistent with the pleas. The mere allegation that White, the administrator, had not paid them, is not tantamount to an allegation that the amounts had been paid or tendered. The pleas were wholly insufficient. —Scharfenberg’s Case, 155 Ala. 651; 47 South. 96; Wing’s Case, 131 Ala. 395, 31 South. 3; Gibson v. Marquis, 29 Ala. 672.

There is no error in the record, and the decree of the chancellor is affirmed.

Affirmed.

Dowdell, ,C. J., and Simpson and Denson, JJ., concur.