Posey v. Pressley, 60 Ala. 243

Posey v. Pressley

60 Ala. 243 | Ala. | 1877

BRICKELL, C. J.

The first statute authorizing the redemption of real estate, sold under legal process, decree of a Court of Chancery, a mortgage, or a deed of trust, was enacted in 1842; and the right of redemption was limited to the debtor, and to his bona fide creditors. Not long after its enactment, it was decided, that the term creditors did not embrace creditors at large, but only such creditors as had reduced their debts or demands to judgment.—Thomason v. Scales, 12 Ala. 309; Br. Bank Mobile v. Furniss, 12 Ala. 367. It was expressly declared, that the plaintiff in execution, whose judgment was not satisfied by a sale of the lands, should be entitled to redeem from the purchaser.—Freeman v. Jordan, 17 Ala. 500. The present statute confers the right of redemption on the debtor, and on “ all judgment creditors 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.” — R. C. § 2513. On the plaintiff in execution, whose judgment is unsatisfied by a sale of the lands, the right of redemption is not now conferred in express terms. It is insisted that, in the absence of such provision, he has not such right, because the sale of the lands removed from them the lien of the execution, as to the purchaser, and it can not attach again, unless the defendant in execution subsequently acquires an estate in them subject to levy and sale. The correctness of this proposition we shall not discuss; for we are convinced, the true construction of the present statute is, that the judgment *249creditor, whose judgment is unsatisfied by a sale, if his judgment was not obtained by confession, is embraced, and was intended to be embraced, by the general term “ all judgment creditors of the debtor.”

2. An established rule of construction of the Code is, that in its adoption the legislature is presumed to have known the judicial construction which had been placed on former statutes ; and the substantial re-enactment of such statutes is an adoption of that construction. Again, in its construction, the manifest purpose to express in general words the substance of former statutes, must be borne in mind; and from the omission of special words found in former statutes, embraced by the general words, an intention to change former statutes will not be implied. It is obvious that, in the adoption of the present statute, the legislature had in view not only the former statute, but the judicial construction it had received. Whatever changes it was proposed to make, either in the statute, or in its construction, are made in express terms, and not left to inference. The statute now employs the term “judgment creditors,” in the place of the term “ bona fide creditors,” which had been construed to embrace only judgment creditors. The former statute was silent as to whether the creditor must have had judgment at the time of the sale, or whether if he obtained judgment subsequently, before the expiration of the two years, he could redeem. Subsequent, as well as prior, or existing judgment creditors, were declared entitled to redeem.—Pollard v. Taylor, 13 Ala. 604. The statute now, in express terms, embraces both classes of judgment creditors. A creditor obtaining judgment by confession had the right of redemption under the former statute.—Couthway v. Berghaus, 25 Ala. 393. The statute now, in express terms, excludes him; and this is the only change of judicial construction, which is expressly made. The present statute evidently intends to enlarge, rather than narrow (except in the particular instance of creditors obtaining judgment by confession), the right of redemption. A child, to whom the parent had conveyed the lands, may redeem. The executor or administrator of the debtor, or of a judgment creditor, is entitled to redeem. — R. C. §§ 2518, 2521.

We cannot doubt, if there had been an intention to change the former statute, so as to take from the judgment creditor, whose judgment remains unsatisfied by a sale of the lands, the right to redeem from the purchaser, it would have been expressed clearly, as was the change in reference to creditors having judgments by confession. The words of the statute, “ all judgment creditors,” in their natural import embrace *250every judgment creditor. These are followed by words of exclusion of particular judgment creditors, and the exception thus made can not by construction be enlarged. The New York authorities, referred to in Freeman on Executions, § 317, depend on a statute, which provides ' that a plaintiff, under whose execution any real estate shall have been sold, shall not be authorized to redeem from the purchaser.—Ex parte Paddock, 4 Hill, 544.

The purpose of the statute is to prevent the sacrifice of real estate at forced sales under judicial process or decrees, or mortgages,-or deeds of trust, and to afford the debtor, or his creditors, in payment of his debts, the advantage of any increase in the value of the lands, within the statutory period. Personal benefit to the creditor is not intended, except so far as it is in relief of the debtor. The evil which the statute proposes avoiding occurs, or may occur, at any of the sales to which the statute refers. The relief of the debtor, it may be, can be afforded by no other creditor, than the one under whose judgment the land was sold. The operation of the statute would be circumscribed, and its efficiency to accomplish the purposes for which it is intended would be lessened, if the creditor under whose judgment the land is sold was excluded from the right of redemption. If it was his benefit the statute was intended to secure, it would, perhaps, be just to say he should have bid more, and compelled the satisfaction of his judgment, or have become the owner of the land. But it is the benefit of the debtor, whose land is subjected to forced sale, the statute regards, and whatever of benefit enures to the creditor is for the relief of the debtor, and in satisfaction of the demand against him.

3. The third instruction given by the court is erroneous. A person offering to redeem must pay, or offer to pay, for valuable improvements made by the purchaser while in possession. An offer to pay the purchase-money, ten per cent, per annum thereon, and the costs of conveying, is not sufficient. He is not entitled to demand of the purchaser a conveyance, nor does the title vest in him by force of the statute, unless he offers to pay “all lawful charges/’ which, it is manifest, embrace not only the costs of conveying, but the value of all permanent improvements made by the purchaser. The term may embrace other charges and claims, and we have no purpose now of indicating what other charges than the value of permanent improvements it may embrace. Payment of these is contemplated, and the party offering to redeem should inquire of the purchaser, or whoever may be in possession, and ascertain whether any, and what improvements have been made, and the value claimed *251for them. It is then, the duty of the purchaser, or whoever has succeeded to the possession, to inform him fully of the character and value of such improvements ; and if the parties cannot agree as to the character of the improvements, whether they are permanent, enhancing the value of the lands, or as to the value, referees must be nominated. — R. C. § 2519. Generally, the person offering to redeem will be uninformed as to the character and value of the improvements the purchaser may have made, or as to the fact of improvements having been made. His duty is performed, when his offer clearly indicates a willingness and readiness to pay for such improvements, on being informed of their character and value, and on being satisfied that they are permanent. Good faith and fair dealing must be observed by each party: the right of redemption must not be embarrassed by the want of it on the part of the party in possession; nor must the person offering to redeem seek a redemption on any other terms than are expressed in the statute. When a willingness and readiness to pay for improvements is indicated by the offer to redeem, then it is the duty of the purchaser, or party of whom redemption is claimed, to give full information of his claim; and if he fails or refuses, the offer becomes sufficient. It is proper to say, in view of some of the evidence found in this record, that if there is a general offer to redeem, and the right of redemption is denied, the party offering to redeem will be excused from any particular inquiry as to a claim for improvements.

4. The debtor, or a judgment creditor, complying with the statute, if redemption is refused, may maintain an action of unlawful detainer for the recovery of possession. — R. C. §§ 2512, 2516. The limitation of this action is three years; but such limitation will not commence running until the right of action accrues.

5. All that the purchaser is required to do, is to convey the title acquired by his purchase at the judicial sale,_ or the sale under a mortgage or deed of trust. Any other right or title he may have acquired, or any independent right and title he may hold, is not affected by the redemption, nor by the conveyance he is required to make.—Weathers v. Spear, 27 Ala. 455. If he has entered into possession under his purchase, he must surrender it when a redemption is made, or on a proper offer to redeem. The purpose of the statute is, that the debtor, if he exercises the right of redemption, shall be restored to the right and possession he had at the time of the sale; and that the creditor redeeming shall be remitted to the right and possession the purchaser 'from whom he redeems acquired by his purchase. A redemption *252cannot be resisted because the purchaser may subsequently have acquired a title superior to that obtained at the judicial sale, or sale under mortgage or deed of trust; nor can the purchaser, who enters under such sale, resist the surrender, or the recovery of possession, because of such title. When the debtor is restored to the possession he was compelled to relinquish, or the creditor is remitted to the possession the purchaser acquired, if the purchaser has a superior title, he may assert it by appropriate remedy for the recovery of possession. Whether the judgment debtor had a homestead in the premises, and whether his right thereto was affected by the sheriff’s sale, — and whether the conveyance under which Posey claims the lands conveys the better title, are not questions whicji arise in the present action. The inquiry is not into the title, but the sale by the sheriff, the entry into possession under that sale, and whether there has been, in compliance with the statute, an offer to redeem, which was refused. The facts existing, the statute casts on the purchaser, or his tenant, the duty of surrendering possession; and if they fail, subjects them to an action of unlawful detainer.

Por the error pointed out, the judgment is reversed, and the cause remanded.