Thompson v. Brown

76 So. 298 | Ala. | 1917

Redemptors of land sold under execution must pay or tender the required amount of money to the purchaser or his vendee. Code, §§ 5746-5749. One entitled to redeem "must, however, have notice, or information of facts sufficient to put him on inquiry that the purchaser has divested himself of title, and who has succeeded to it, before he can be required to make the offer and tender to the alienee or grantee of the purchaser, or to any one else than the purchaser. In the absence of such notice, or of such information, it is to the purchaser only he can apply for redemption, and it is his title he proposes to acquire." Lehman Co. v. Collins, 69 Ala. 127, 132. Of course, if the alienee takes and holds the land in actual visible possession, this is sufficient notice of the alienation and payment or tender must be then made to such alienee. Camp v. Simon, 34 Ala. 126. If the allegations of the bill are true, then complainant has already effected a complete redemption of the land, and Matthews' previous alienation to McKee, of which complainant had no notice, was without effect. Equally ineffective, also, was the subsequent alienation from McKee to Thompson.

These alienations, it is true, incumber the title with a cloud, which a chancery court will remove by cancellation; but the bill must, for that purpose, show that complainant is in possession of the land. Drum v. Bryan, 193 Ala. 395, 69 So. 483. As to this particular aspect of the bill, under the general prayer for relief, it was plainly subject to the demurrer.

Unquestionably, complainant may, if he chooses, waive the effect of his redemption from Matthews, as well as the alleged illegality of the execution sale, and seek redemption from an alienee. Tested by the special prayers of the bill, its purpose seems to be to declare the execution sale void, or, in the alternative, to effect another redemption from Matthews' subalienee, Thompson. No facts are alleged to support the charge that the execution sale was illegal, or not binding on complainant, and in this aspect the bill was also subject to the demurrer.

Treated as a bill to redeem from Thompson, as the alienee of the title acquired by Matthews at the execution sale, the bill is defective in failing to allege that the amount tendered included all lawful charges of which complainant had notice, and was subject to the demurrer on that account. Fuller v. Varnum, 147 Ala. 336, 41 So. 777. So far as the timeliness of the tender is concerned, we think the bill shows a sufficient excuse for the delay in making the tender to Thompson.

The several demurrers, and each of the grounds thereof, are addressed to the bill as a whole, and not severally to such particular aspect of the bill as each was appropriate to. The result is that, although the bill is defective in each of its three aspects, the demurrers, not being specifically addressed, were properly overruled. Worthington v. Miller, 134 Ala. 420,32 So. 748.

In the application of this rule of pleading, it must be noted that the allegations of the bill, upon which the alternative prayers are based, are not made disjunctively, and hence an insufficiency in one set of allegations does not render the whole bill bad on that ground alone, as was held in Henry v. Tennessee, etc., Co., 164 Ala. 376, 50 So. 1029.

Let the decree be affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.