57 So. 719 | Ala. | 1912
The bill as amended, under the agreement of the parties, is confessedly one for statutory redemption of land sold under a mortgage. The real, and practically the only, question is whether or not the purchaser at the mortgage sale made a written demand for possession of the land on the mortgagor, the party in possession.
After a careful consideration of the evidence, Ave concur in the finding-of the fact by the chancellor that the AA’riting, which was read by one Talbot, as the agent of the purchaser, to the complainant, purporting to he -a demand for possession, Avas not delivered to the complainant, nor a copy thereof delivered. And the question of la ay is: Did the reading merely of the Avriting, purporting to be a demand, to the party in possession, constitute a “written demand” under the statute? The present statute, section 5747 of the Code of 1907, reads as folloAYS: “The possession of the land must be delivered to the purchaser Avithin ten days after the sale thereof, by the debtor, -if in his possession, or of any one holding under him by privity of title, if in his possession, on written demand of the purchaser or his vendee.” Prior to this statute an oral or- verbal demand for possession was-sufficient. When we mdew the legislative history of the statutory right of redemption of land, the legislative intention of the importance of a Avritten demand, as incorporated in the present statute, is not to be overlooked. The right to redeem after foreclosure was first conferred on the mortgagor
We are also of the opinion that in complying Avith this requirement of the statute — that is, in making- a Avritten demand — the writing should be served upon the debtor, or the person in possession, by the delivery of the Avriting to such person, and that a mere reading of the writing, purporting to be a demand, by the purchaser To the debtor, is not sufficient. So.- far as the debtor is concerned, the reading by the purchaser of Avhat purports to be a Avritten demand for possession of the land is nothing more than the purchaser’s oral demand.
We think, hoAvever, that the demand in Avriting might be Avaived;. but in such a case the waiver should be clear and unequivocal, since it involves the forfeiture
Affirmed.