Stringer v. Kelly

103 So. 650 | Ala. | 1925

Appellee is the wife of U. B. Kelly, with whom, on October 11, 1919, she joined in the execution of a mortgage upon the homestead to the Headland Realty Farm Corporation. Both the land and the debt were that of the husband. On November 25, 1922, the mortgage was duly foreclosed, appellant C. A. Stringer becoming the purchaser. U. B. Kelly, the husband, failed to deliver the premises within 10 days as required by the statute upon demand in writing being made upon him by the purchaser, and thereby forfeited his statutory right of redemption. Section 5747, Code 1907; section 10143, Code 1923; Farley v. Nagle, 119 Ala. 622, 24 So. 567.

Appellee, the wife, files this bill for the exercise of the statutory right of redemption. Section 5746, Code 1907; section 10140, Code 1923; Thomas v. Blair, 208 Ala. 48, 93 So. 704.

The sole objection to the sufficiency of the bill relates to the failure to allege that notice was given to the husband, U. B. Kelly, of complainant's intention to redeem, and that said U. B. Kelly declined for a period of 60 days to exercise the right. The insistence is based upon provisions of section 10141, Code 1923.

Under the situation as here disclosed, it may be questioned that this latter section is controlling (Cowley v. Shields,180 Ala. 48, 60 So. 267; Mixon v. Burleson, 203 Ala. 84, 82 So. 98; Jones v. Kelly, 203 Ala. 170, 82 So. 420), but this is a question which need not be here determined, and is expressly pretermitted, as we are of the opinion even should this section be applicable the bill is not subject to the demurrer interposed. The bill shows the husband had forfeited his right of redemption, and no necessity existed for the notice to be given as provided in the foregoing statute, as the law does not require the doing of a useless thing. That statute very clearly did not contemplate notice to be given to one who had no right of redemption, but whose right had been forfeited, as is here expressly averred.

The decree overruling the demurrer to the bill will be here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.