45 So. 218 | Ala. | 1907
— Bill to enforce statutory redemption, and the relief sought was granted by the chancellor. E. H. Anchors purchased for $1,200 from appellant, Johns, the real estate described in the bill, paying in cash $200, and giving his notes, secured by mortgage on the land, for the $1,000 balance. The complainant (appellee), the wife-of Anchors, joined in the execution of the notes and mortgage. On default in payment of the notes, the mortgage was validly, the record shows, foreclosed under the power provided, and one Truss became the purchaser at the sale on his bid of $50. Latterly Johns purchased the land from Truss. Within the time specified in section 3510 of the Code of 1896 appellee reduced her demand against E. H. Anchors to judgment. The answer assails this judgment as the product of fraud and collusion; but the evidence, noted in the. cause, without conflict or unfavorable inference, establishes the bona tides of the indebtedness underlying the judgment, as well as refutes all of the charges of fraudulent conspiracy asserted by the answer. So in this respect the appellee is entitled as a judgment creditor to the benefit of the redemption statutes; and we are of the opinion that the record shows a literal compliance by the proposed redemptioner with the terms and conditions of the statutes. The tender was of the amount bid, with interest, and the expression of willingness to pay lawful charges and an offer to credit 10 per cent of the bid sum on the appellee’s judgment. We cannot accept the view entertained by appellant’s objections that the offer to credit was of a sum less than that required by the statute. If, though tlie language expressing the
The appellant further contends that it is not affirmatively shown that the tender was made to the proper person. The tender was made to appellant, and he refused to allow the redemption, for the sole reason that the tender did not include a sum sufficient to pay the whole of the unpaid mortgage debt. The statute under consideration is expressly.to the contrary. Nor can the appellant be permitted to defeat this redemption by the contention that it is not affirmatively shown that he was the vendee of the purchaser at the time of the tender. His refusal to accept the tender made, Avhich Avas ample in amount, Avas rested upon the consideration, and that only, stated aboAre. It Avould he the grossest injustice to the appellee, if it Avere othenvise allowable (Walker v. Ball, 39 Ala. 298), to countenance such a change of base. Having declared the reason for his refusal, he cannot abandon it for one appearing subsequently to he to his advantage to assert. If he was not the vendee of Truss at the time of the tender, it was his duty to so inform the proposed redemptioner, that she might then apply to the purchaser, and, not having done so then, he cannot noAV. — Lampley v. Weed, 27 Ala. 621; Couthway v. Berghaus, 25 Ala. 393.
There is no merit in the insistence that equity forbids the redemption here involved. Such redemption being purely statutory, and a mere privilege given certain classes, the only inquiry in such cases is: Has a com-, pliance with the. statutes by one so entitled been shoAvn? If so, the purpose of the statute must he given effect. No property right is involved, and no doctrine of equity can
The joinder of appellee in the mortgage was that her dower rights in the land might be released, and no warranty of hers was implied in or made by her execution of it. As to the notes, they were for the husband’s debt, and as to her Avere void. No estoppel against her Avas created by her signature to them.
If the loss of the difference betAveen the sum bid and the amount of the. mortgage debt appears to be a hardship on the appellant, it is the result of his own act in not seeing that the land brought, at the sale, the amount of the debt. The appellee owed the appellant no debt, nor Avas she liable to him on any account, and it Avould be patently unjust to lay, as a condition for her redemption as a judgment creditor of the mortgagor, the satisfaction of another’s debts. The statute does not require it. The case of McGough v. Sweetser, 97 Ala. 367, 12 South. 162, 19 L. R. A. 470, is not applicable here. There the equity of redemption Avas sought to be effected under the unforeclosed dower rights of a wife of a mortgagor. In short, the mortgage had not been foreclosed as to the AAdfe, and she Avas forbidden to redeem until the Avhole debt Avas .paid. Here the mortgage Avas rendered functus by foreclosure, and the redemption is sought by a judgment creditor.
The decree below is without error, and is therefore affirmed.
Affirmed.
