85 So. 742 | Ala. | 1920
The object of this bill, filed by appellee against the appellant, is to effect statutory redemption. Code, § 5746. Being purely the creature of statute, such redemption can only be availed of by those authorized by the statute to effect it, and so in the circumstances and in the manner defined by the statutes. Burke v. Brewer,
It is averred in the bill that the mortgages, executed by Pink Burgess, were foreclosed about August 10, 1918, that Pink Burgess died (in November, 1917) before this foreclosure sale was had, and that a few months after such foreclosure Mattie Sugg (a daughter of Pink Burgess, deceased) conveyed to complainant all her interest in the land described in the mortgages "and her right of redemption in and to said lands." Whether the foreclosure was in fact validly effected under the terms of the mortgages is not considered; both parties and the averments of the bill appearing to regard the foreclosure as being full perfected, extinguishing the equity of redemption.
It thus and otherwise in the bill appears that complainant attributes his right to redeem under the statute to his asserted relation of assignee of Mrs. Sugg's averred right to redeem under the statute (Code, § 5746); the foreclosure (assuming it was validly effected) having divested all interest of Mrs. Sugg and Pink Burgess in the land. It is settled here that statutory redemption under the Code of 1907 (section 5746 et seq.) continues to be a privilege merely — not a property right or interest — in favor of those specified in the statutes creating this system of redemption. Leith v. Galloway Coal Co.,
In Leith v. Galloway Coal Co., supra, decided in 1914, it was expressly decided, in construction of Code 1907, § 5746, that only the debtor was authorized thereby to assign the statutory right of redemption. Unequivocal, indubitable pronouncements to this effect will be found on pages 206, 207 of 189 Ala. (66 So. 150). But in Baker, etc., v. Eliasberg, etc., Co.,
"His vendee, junior mortgagee, or assignee or the equity of statutory right of redemption."
It is manifest that the construction of the statute taken in Baker, etc., v. Eliasberg, supra, was unaffected by the merely incidental fact that the heir there executed the mortgage to that appellee before foreclosure of the original mortgage under the power of sale. It is not to be supposed that the lawmakers entertained any purpose to introduce a patent redundancy into the body of the statute. While the concrete case presented in Leith v. Galloway Coal Co. was correctly decided, an erroneous construction was accorded the statute (section 5746) in interpreting it as limiting to the debtor only the authority to assign the statutory right of redemption. To that extent Leith v. Galloway Coal Co.,
It is averred in the bill that at the foreclosure sale Tim E. Toney became the purchaser of the land described in the mortgages, that C. R. Burgess executed a foreclosure deed to him for such land, and that C. R. Burgess took a mortgage in the amount of the bid. As stated before, the validity of the foreclosure sale is not questioned by any party to the cause. Under the circumstances, it is manifest that both Toney and C. R. Burgess were proper, if not necessary, parties to the bill to completely effect statutory redemption; the bill containing prayer for the cancellation of this mortgage in perfecting the redemption sought.
Paragraph 8 of the bill is this:
"Complainant alleges that he has offered, as said grantee of the said Mattie Sugg, to redeem said lands from said mortgage sale, and his said offer was made to the said Tim E. Toney and C. R. Burgess together, in the office of the complainant in Russellville, on October 3, 1918, and the said Toney informed the complainant then and there that he would not execute him a deed to said lands, and would not receive the purchase money, together with the charges specified by law, unless he was permitted to omit from said redemption, and from the description in his said deed to the complainant, the redemption of a certain 31 acres, which he claimed belonged to some other party."
The bill avers the complainant's willingness and ability to do equity and to pay whatever sum is ascertained by the court to be necessary to effect statutory redemption. Through pleas, denominated pleas in "abatement," the respondents Tim E. and Ben Toney asserted that complainant made no demand for a statement of the amount necessary to effect redemption, and also that no efficient tender was made to the purchaser, Tim E. Toney, nor was an effective deposit with the register made in the premises. There was evidence justifying the conclusion that Tim E. Toney, the purchaser, refused, as averred in paragraph 8 of the bill, to permit redemption unless the complainant — assignee of the statutory right of redemption — would accept a redemption that omitted 31 acres owned or claimed by others and 4 acres owned by the state of Alabama. This refusal of the purchaser Tim E. Toney, to permit redemption, except upon the stated condition, relieved the redemptioner from any duty to demand a statement of the items composing the amount necessary to effect redemption (Code, §§ 5750, 5751, and section 5748, as amended in the Acts of 1911, p. 391), or to make any tender to the purchaser; the position thus taken by the purchaser operating a waiver in the premises. Johns v. Anchors,
No specific relief was prayed or granted against Ben Toney. Hence his mere presence as a party to the cause was without material prejudice to any one.
The decree is not affected with error in any of the particulars urged in the brief for appellant. It is affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, THOMAS, and BROWN, JJ., concur. *332