Steele v. Hanna

91 Ala. 190 | Ala. | 1890

COLEMAN, J.

The appeal is taken from the decree of the court overruling certain exceptions to the report of the register, and from the final decree rendered. On a former appeal of this case, this court declared : “The necessary facts were distinctly alleged in the bill,” and “the evidence establishes a sufficient tender.”—84 Ala. 305. Whenever a party, authorized to redeem land, makes a sufficient tender of the purchase-money, with ten per cent, per annum, and all other lawful charges, such tender lias the effect to reinvest him with the title. — Code, g 1881. Ten per centum per annum ought not to be allowed where there is a sufficient legal tender.

By section 1889 it is provided, that any person offering to redeem must pay to the person in possession the value of all permanent improvements made by him after he acquired title. If the parties can not agree upon the value of the improvements, each must appoint a referee to ascertain the value thereof.^ ¡Section 1890 provides fhat, “Ifthe person offering to redeem declines to nomínale a referee, he mitst pay the value put upon the improvement s by the person in possession. If the latter refuses to make such appointment, he forfeits his claim to compensation for such improvements.’’

The disagreement as to the value of the improvements, the nomination of a referee by the complainant, and the refusal of the defendant to make such appointment, are distinctly alleged in the bill, and fairly proved by the witness Steele; and we find no conflicting testimony on this point.

The register calculated the ten per centum to the day of the execution of the reference, and this allowance was ratified and confirmed by the court. In the decree of confirmation, the court also allowed the defendant pay for the improvements, which, according to the evidence offered in the cause, and also' before the register, had been forfeited under section 1S90 of the Code.

Such a construction and application of Rules 89 and 93 of Chancery Practice as would deprive the complainant of the benefit of the answer of Steele made to direct interrogatory No. 3, reserved and relied upon to sustain his exceptions to the rulings of the register, would be too technical and rigid.

Ten per cent, per annum on one hundred and thirty-five dollars, the amount of the purchase-money, from December 1, 1884, to October 12, 3885, making a total of one hundred and forty-seven 62-100 dollars, is the full amount to which complainant ivas entitled, and for which the decree should have been rendered.

A decree will be here rendered by this court, for the proper amount; and the cost of the appeal will be taxed against the appellee. On payment by the appellant of the redemption money as hereby decreed ($147.62), within sixty days, with legal interest from this date, the costs of the suit will be taxed against the appellee ; and on default of such payment, within the time specified, the bill will be dismissed, and the costs of the suit taxed against the complainant.

Reversed and rendered.