68 Ala. 111 | Ala. | 1880
la the action of ejectment, or in the corresponding statutory real action, if the plaintiff shows a superior legal title, he must recover, without regard to the equities of the parties; for a court of law cannot look beyond the legal title.—Mitchell v. Robertson, 15 Ala. 412. Both parties deduce title from Britton Searcey; the appellee claiming from a purchaser at sheriff’s sale, under execution against Searcey; and the appellant, because of an offer to redeem made under the statute, to the appellee, after the conveyance to him, and within two years from the sale by the sheriff. The right of redemption is claimed by the appellant, Mrs. Searcey, under a conveyance of the lands made to her by the defendant in execution, after the sale by the sheriff.
When the sale by the sheriff was consummated, by the delivery of the deed to the purchaser, the legal estate of the defendant in execution, or whatever of title or interest he had in the premises subject to levy and sale under execution, was divested, and was vested in the purchaser. There remained nothing in the defendant in execution, but the naked, statutory right of redemption, which was lost, if within ten days after demand made by the purchaser, or his vendee, possession was not surrendered; and was lost irretrievably, if, within two years, he did not pay, or tender to the purchaser, or his vendee, the purchase-money, ten per cent, per annum interest, and all other lawful charges.—Code of 1876, §§ 2877-79; Spoor v. Phillips, 27 Ala. 193; Morris v. Bebee, 54 Ala. 300; Sanford v. Ochtalomi, 23 Ala. 669; Paulling v. Meade, Ib. 505.
Whether this statutory right of redemption is alienable, or assignable, we do not now determine. If it is, the alienation, or assignment, can pass no more than the right*residing in the defendant; it cannot pass a right, or interest, or estate in the land, for none remains in the defendant. All it can pass, is the right of the defendant, on compliance with the statute, to repurchase the lands. This right, prior to the present statute, the defendant could assert and enforce only in equity—Smith v. Anders, 21 Ala. 782. Under the present statute, the effect of a compliance, or tender of compliance, with the statutory terms of redemption by the debtor, is, to re-invest Mm with the title. The statute eannot be extended to an alienee, or an assignee, clothing or re-investing him with a title which never resided in him. Its whole purpose is the restoration of the judgment-debtor to his original estate. If his assignee, or alienee, can acquire the statutory right of redemption, the right must be asserted and enforced in equity, and not at law.
The result is, the appellant had not, in any event, any