60 So. 799 | Ala. | 1912
This bill is filed to enforce the statutory right of redemption in lands sold under a
Prior to Code 190,7, § 5746, an assignee of the “statutory right” of redemption could not redeem. Indeed, it has been repeatedly held that the statutory right of redemption, as distinguished from the equity of redemption, was a mere privilege or right personal to the debtor, that it was neither property nor the right of property, and that it was not subject to levy or sale under execution.—Burke v. Brewer, 133 Ala. 392, 32 South. 602; Powers v. Andrews, 84 Ala. 291, 4 South. 263. The present statute, however, (Code 1907, § 5746), authorizes the exercise of the right of redemption by the assignee of the statutory right, so the question of importance is whether or not the trustee of the bankrupt mortgagor is an assignee of the statutory right to redeem within the contemplation of the statute. When the mortgagor was adjudged a bankrupt, the statute authorized redemption by the assignee of the statutory right, and Bankr. Act, § 70, vested the trustee wick, the title to all property of the bankrupt as well as certain powers and lights including “powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person,” etc. It is plain that the mortgagor could have exercised this right for his own benefit prior to his bankruptcy, and it is equally plain that the trustee became vested with this right, under the bankruptcy law, upon the adjudication of bankruptcy. This holding is supported by analogy in the case of Robinson v. Denny, 57 Ala. 492. “A state court passing upon claims of an assignee is not a proceeding under the Bankruptcy Act, but simply recognizes that act as the source of the assignee’s
There can be no doubt of the soundness of the proposition that, in order to redeem under the statute, the complainant must make a tender or show a sufficient excuse for a failure to do so. The only excuse that this complainant attempts is to charge that the written statement of the debt and lawful charges furnished him by the respondents was not correct, and that he was, therefore, relieved by section 5748 of the Code of 1907 from making a tender with his bill of complaint. That is to say, he does not dispute the correctness of the statement as to the amount of the debt owing, but contends that the statement exceeds the sum necessary to redeem, for the reason that respondents included $1,000 worth of personal property in the mortgage and sale thereunder, which should be credited to complainant in case of a redemption of the land. In other words, the respondents got $1,000 worth of personal ' property which they will not account for if the complainant has to pay the full amount claimed in the statement in order to redeem the land. The statute (section 5748) not only requires a statement of the debt, but of all lawful charges, meaning all lawful charges to which he would be entitled in case of redemption. If, therefore, the averment of the bill is true, that the statement does not give a credit for the personal property embraced in the mortgage, the complainant can maintain his bill without a tender.
The bill also claims a credit for waste by the mortgagee purchaser after the sale under the power, but does
The bill was not subject to the grounds of demurrer questioning the right of the complainant to maintain the bill as an assignee of the statutory right of redemption, or taking the point that a tender was necessary, and these are the only grounds going to the whole bill. So much thereof as attempted to set off the value of the timber against the mortgage debt was subject to a specific demurrer, but not to one addressed to the whole
The decree of the chancery court is affirmed in part, and is reversed as to sustaining the demurrers going to the whole bill, and a decree is here rendered overruling same, and the cause is remanded.
Affirmed in part, reversed in part, rendered, and remanded.