61 Ala. 253 | Ala. | 1878
This was an action of unlawful detainer brought by appellant against Steele the defendant. The case arose under the sections of the Code authorizing judgment creditors to redeem within two years, lands of their debtors which have been sold under execution, or decrees in chancery, or powers of sale in mortgages. And the single question presented and argued here is this : When a judgment creditor who is entitled to redeem, in order to do so, tenders to the purchaser of his debtor’s land which has been thus sold, all that the statute prescribes, and offers to credit the debtor upon a judgment against him, with ten per cent, or more of the price for which the land was sold, — has the purchaser to whom the tender and offer are made, the right to respond and retain the land, by himself crediting the same amount, upon a judgment he has against the debtor, if that judgment was obtained by the confession of the debtor, after the land was sold? In this instance, the judgment in favor of the purchaser was confessed after the sale, and one day before that on which appellant, the plaintiff below, obtained its judgment by due course of law ; and the debtor, Steele, remained in possession of the premises as tenant of the purchasers.
Preceding sections having provided for the redemption by the debtor himself, upon terms prescribed therein, section 2881 (2513) of the Code of 1876 enacts that any “creditor of the debtor, who without fraud or collusion had obtained such judgment before the sale of the land, or within two years thereafter, except by confession of the debtor, may in like manner redeem the land from such purchaser or any one claiming under him by paying or tendering the amount bid for such land at the sale thereof, and ten per centum thereon together with all lawful charges, — and by further offering to credit the debtor upon a subsisting judgment, with a sum at least equal to ten per cent, of the amount originally bid for
While judgment “ by confession of the debtor ” is spoken of but once in this law, — a crediting of the debtor “ upon a subsisting judgment,” is mentioned three times; — twice in reference to the judgment held by the redeeming creditor, and once in respect to a judgment upon which the purchaser may enter a credit to be set off against that of the creditor who proposes to redeem. And of neither of these judgments is it expressly said — that it must not, if obtained after the land was sold, be a judgment by confession. The letter of the law would, therefore, not be violated, if we should hold that a creditor desiring to redeem, who hada judgment upon verdict for a small sum, say less than ten per cent, of the price, paid for the land, and a judgment rendered upon confession after the sale, for a large amount, is entitled to credit the ten per cent, or more which he should bid, either at first or afterwards, upon the judgment by confession. Moreover, we should thereby give to the clause concerning judgments by confession, some effect. But certainly this would not be all the effect the law-makers intended it should have. We can not read the entire statute, without perceiving that at /least in two of the places where the expression, “ a subsisting judgment,” is used, the legislature meant that it should not include judgments obtained by confession of the debtor. And considering the policy of the enactment, and the fact that in the third place where this expression is used — it is so closely connected, both in location, and meaning with the same expression where it occurs in the other places, we feel compelled to hold that it was used in all three instances in reference to judgments not obtained by confession.
The object of the law was to prevent the sacrifice of real estate at forced sales, by inducing purchasers to bid prices for it not greatly below its value. To this end, the debtor whose it was, or his judgment creditors — may redeem it within two years, on terms prescribed. According to the next section (2883) of the Code, if one creditor redeems and thus becomes the purchaser of the land, another is also authorized to redeem on like terms, from him. And it is to promote fairness among all the parties, in these contests or
We therefore feel compelled to hold that the statute prohibits the use of a confessed judgment to a purchaser who is resisting a redemption of the property, as well as to a creditor who is seeking to redeem it.
The circuit judge erred in giving the instruction to the jury, that if they believed the evidence they must find a verdict in favor of defendant, — and in refusing to give the contrary instruction asked for plaintiff.
Judgment reversed and the cause remanded.