105 So. 223 | Ala. | 1925
A devisee of the mortgagor is named in the statute as one of the persons having a statutory right of redemption of lands sold under mortgage. Code, §§ 10140, 10155. This right or privilege is personal to him, to be exercised within a limited time in the statutory manner. Allison v. Cody,
The statute does not postpone the exercise of the right of redemption to ascertain the condition of the estate of the deceased mortgagor, nor is the right of the devisee to redeem conditioned on whether the estate is solvent or insolvent. A postponement to ascertain whether the property, but for the sale under the mortgage, would have been consumed in the payment of debts and special bequests, and the devisee therefore take nothing, would, by reason of the limited time given for redemption, often defeat that right. The statutory interest of 10 per centum per annum, with taxes and other lawful charges, required to be paid the purchaser on redemption, without an accounting for rents on his part, tends also to rapidly decrease the value of the redemption privilege.
We conclude the bill was not prematurely filed.
Moreover, as before stated, the right of the devisee to redeem is not dependent on the condition of the estate, and it is not necessary to aver or prove that the personalty of the estate is sufficient to pay the debts, or that the estate is solvent.
The will makes specific bequests of chattels, some small legacies aggregating $15, payable in money, not charged against any special property, and devises and bequeaths "all the rest and residue of my estate, real and personal," to complainant. Under *346
a will of this kind, the special legacies are a charge on the entire estate, and, in the absence of sufficient personalty to pay debts and legacies, become a charge on the lands. Gorman v. McDonnell,
The bill making no averments as to the value of the personal estate, nor the amount of indebtedness, it may be taken on demurrer as admitting the money legacies were a charge on the equity of redemption in the lands before it was cut off by foreclosure. But this did not prevent the vesting of the devise in complainant, if it be assumed that a vested, rather than contingent, devise is necessary to give the status of a devisee entitled to redeem under the statute.
Neither the executor nor the legatees of the mortgagor are necessary parties to the bill. Appellant's argument to the effect that the executor, as the representative of creditors, should be a party to the accounting required to ascertain the amount to be paid on redemption, proceeds on a mistaken view of the nature of the action. This is not a redemption from an existing mortgage wherein the equity of redemption is made available for the payment of debts. The equity of redemption was cut off by the foreclosure. A complete title is vested in the purchaser, subject to a statutory right to redeem — a personal privilege to repurchase. A redemption by the devisee does not inure to the estate.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.
