Parmer v. Parmer

74 Ala. 285 | Ala. | 1883

SOMEEYILLE, J.

— No principle of equity jurisprudence is more firmly settled, than that the mortgagor’s right to redeem can not be waived or extinguished by any collateral agreement entered into contemporaneously with the execution of the mortgage. Courts uniformly regard with great jealousy all attempts to fetter or embarrass the exercise of this right, which is an outgrowth of the just triumph of equitable principles over the harsh operation of a mere technical rule of law. Where, therefore, a mortgagor is induced to enter into a contract with the mortgagee, cut the time of the loan of the money, waiving, or agreeing not to exercisé, his right of redemption in the event of default, the contract will be set aside, as being oppressive to the debtor, and offensive to the established maxim of equity, “ once a mortgage, always a mortgage.” — 2 Fonb. Eq., B. 3, ch. 1, § 4; Willard’s Eq. Jur. 428, 447; Holdridge v. Gillespie, 2 John. Ch. 30; 2 Jones Mortg. § 1039; McKinstry v. Conly, 12 Ala. 682; Story’s Eq. Jur. § 1019; Baxter v. Willey, 31 Amer. Dec. 623. A bona fide purchase, however, of an equity of redemption, effected subsequently to ‘the mortgage, though often scanned with watchfulness by the courts, will be upheld. — 3 Add. Contr. § 1026; 15 Viner’s Abr. 468.

The statutory right of redemption, conferred by our Code of laws upon mortgagors and judgment debtors, is, of course, essentially different in many respects from “ an equity of redemption” proper. Unlike the latter, it is not an estate in the lands subject to levy and sale under execution, but a mere personal privilege conferred upon the debtor, to be exercised by him upon certain prescribed conditions. — Code, 1876, §§ 2877-79; Childress v. Monette, 54 Ala. 317. Yet the policy of each is essentially the same, and the courts are inclined to construe them both favorably for the protection of the debtor against any undue oppression on the part of the creditor. — Carlin v. Jones, 55 Ala. 624; Briggs v. Seymour, 17 Wis. 255. We are clearly of opinion, that the reason and policy of the law, which' render voidable any stipulation disannexing the equity of redemption from a mortgage, apply with equal force to prohibit the waiving of the debtor’s statutory right of redemption. The chancellor did not err in holding this to be the law in the present case.

2. The settled rule as to rents is as follows : The rents and profits which accrued before the tender and refusal, may be set off against the permanent improvements shown to have been made; but any excess of such rents, over and above the value of improvements, is not recoverable by the complainant against the mortgagee, who is in possession under a sale of the mortgaged premises.— Weathers v. Spears, 27 Ala. 455; Spoor v. Phillips, Ib. 193. But the complainant is entitled to recover all rents accruing after his tender and offer to redeem. The effect of the tender, even if refused by the mortgagee, if made in time, is to re-invest the mortgagor with the title to his property, of which he was divested by the mortgage sale. The statute so expressly dec!ares. — Code of 1876, § 2879. “This clothes him with all the rights and incidents of ownership, and, among other things, with the right to be compensated for the use and occupation of his lands, wrongfully withheld. He is entitled to annual rent, with interest on each year’s renting, until the coming in of the report.” — Carlin v. Jones, 55 Ala. 624, 630.

We can not see from any thing in the record that the register, in taking the account between the appellant and appellee, departed from these principles, or that they were not recognized by the chancellor in his decretal order of reference.

3. There certainly was no error in the refusal of the register to allow the mortgagee to set off, as against the rents, the demands preferred by him against the mortgagor, having no sort of connection with the mortgaged property. These demands were ordinary debts, not covered by the mortgage. The complainant is authorized to redeem, by paying the amount of the mortgage debt, with ten per-cent, per annum thereon, up to the time of making tender, “with all other lawful charges.” Code, § 2879. This embraces only such claims or demands as are in the nature of .an incumbrance or lien, for which the purchaser would be entitled to hold the land as security. — Lehman v. Collins, 69 Ala. 127; Grigg v. Banks, 59 Ala. 311, 317; Couthway v. Berghaus, 25 Ala. 393; Walker v. Ball, 39 Ala. 298. It is manifest that, if the sets-off claimed by the mortgagee before the register had been allowed, the legal effect would have been to indirectly create them liens upon the mortgaged property, in the face of the fact that there was no agreement between the parties to this effect.

We are not disposed to disturb the findings of the register, on the facts, as to the value of the improvements made upon the property by the mortgagee after the sale. No allowance can be made in such cases, except for improvements which are permanent in their nature. — Code, § 2887. So, nothing is to be allowed for improvements of any kind, which are made after the complainant offered to redeem by making a legal tender, such as is required by the terms of the statute. If the value of these improvements exceeds the amount found by the register in his report, it is shown that a large portion of ■ them were made after the offer of redemption, and therefore in the wrong of the mortgagee and at his own hazard.

We discover no error in the decree of the chancellor, and it is, therefore, affirmed.