Lewis v. McBride

57 So. 705 | Ala. | 1912

SIMPSON, J.

This is a bill by the appellant, seeking to redeem land that had been sold by virtue of a power of sale in a mortgage. The mortgage was made by George Lewis to Powell, Hamilton & Lane. The respondent J. J. McBride purchased at the mortgage sale and afterward sold the property to the other respondent T. B. Brown. After the sale under the mortgage, said George Lewis executed a paper in words as follows, to wit: “I * * * grant, bargain, sell, transfer, set over and assign, and do by these presents, grant, bargain, sell, convey, transfer, set over and assign to Mae Lewis all of my right, title and interest to my equity of redemption in and to a certain mortgage executed by George Lewis,” etc.; going on to describe the land covered by the mortgage.

The original bill alleges that the sale by McBride to Brown was on credit, and that the legal title remained in McBride, and the amendment to the bill sets out the terms of the contract of sale, and reiterates the fact that the legal title remained in McBride. Brown, the purchaser, is in possession of the land. The original bill showed, by exhibit, a written demand on McBride, 10 days before the filing of the bill, for a statement of the debt and lawful charges. No tender of any money is alleged; nor is any money deposited in court.

After demurrer to the original bill had been sustained, the complainant filed an amendment, alleging that, af+er the decree sustaining the demurrer, the complainant had made a written demand on said Brown for a statement of the debt and lawful charges; that 10 days had elapsed since said demand; and that said Brown had failed to furnish the statement, and had refused to furnish the same, “saying that it was none of his business to do so, and that this was a matter for J. J. McBride to attend to.” Still the complainant does not allege any tender of any money; nor does she deposit any money in court.

The first question which arises is whether the complainant is entitled to redeem at all. It is true that section 5746 of the Code of 1907 authorizes the assignee of the “right of redemption,” as well as the assignee of the equity, of redemption, to redeem. According to numerous decisions of this court, the equity of redemption is that interest in the land which is held by the mortgagor, before foreclosure; while the right of redemption is not an interest in the land at all, but a mere personal privilege given by statute to the mortgagor after the land has been sold under the mortgage. It is true that, at the time of the execution of the instrument in question, said George Lewis did not have equity of redemption in the land; but can we infer that, because a party making a quitclaim deed has no interest in the property named, he intended to convey something else, not named in the paper? We think this would be a dangerous principle to assert, and we therefore hold that the instrument in question was not an assignment of the statutory right of redemption.

We hold also that the chancellor correctly held that, under the' ruling of this court in the case of Francis et al. v. White, Adm'r, 142 Ala. 590, 39 South. 174, the amount of the purchase money, with interest, should have been tendered and deposited in court.

The judgment of the court is affirmed.

Affirmed.

All the Justices concur, except Sayre, J., who, while concurring in the result on other points, thinks that the conveyance carried the right of redemption.