Wallace v. Markstein

40 So. 201 | Ala. | 1906

SIMPSON, J.

This is a hill filed for the purpose of redeeming the mineral interests in certain lands lying in Randolph and Clay counties. The lands were originally sold by Lashley to Levi, and a vendor’s lien for a considerable amount remained- upon the lands in favor of Lashley, That portion of said interest in said lands lying in Randolph county was sold September 1, 1902, under an execution against Levi on a judgment rendered in favor of the Moore & Handley Hardware Company in March, 1902, and bought in by said Moore & Handley Hardware Company; and on July 13, 1904, the same was sold by said Moore & Handley Hardware Company to the complainant' (the appellee). On July 14, 1902, a bill was filed against said Levi to enforce the lien for purchase money, and the mineral interests in both counties were sold thereunder in April, 1903, to appellant Samuel Wallace, and die in August, 1903, conveyed that part in Randolph county to the other appellant, Fred York, who is a nonresident of Alabama. In June, 1904, said Levi conveyed all of his right, title, and interest in the said lands in both counties to the complainant, and on July 13, 1904, the Moore & Handley Hardware Company, conveyed their interest to complainant. So it appears that the defendants hold under the sale to enforce the vendor’s lien; and the complainant, who seeks to redeem, holds the interest in Randolph county under a deed made subsequent to the foreclosure sale by the Moore & Handley Hardware Company, who had previously bought the equity of redemption under their judgment, and he holds that part in Clay county by virtue of the deed of Levi, made after the lien had been foreclosed against him. It has been uniformly held by this court that the right of redemption, which is given by the statute after sale, is purely the creation of the statute,' and that it is merely a personal privilege conferred upon those named in the statute, and .is neither property nor the right of property, not assignable and not subject to levy and sale under execution.' — Burke v. Brewer, 133 Ala. 289, 392, 32 South. 602, and cases cited; Terry c. Allen Bros., 132 Ala. 657, 32 South. 664. While section 3505 of the Code of 1896 extends the right of redemption to the vendee of the debt- or, that evidently refers to a person to whom the debtor may have sold the equity of redemption before the sale, under the decree or mortgage, etc., as the word “vendee’’ necessarily refers to a sale of land, and after the sale, by foreclosure or otherwise, under the statute, no interest in the land remains to be sold; and, if the statute had intended to confer the right to transfer or assign the personal right held by the debtor, other words would have been used. So, when the Moore & Handley Hardware Company conveyed to complainant, they had no interest in the land to convey after it had been sold under the foreclosure proceedings, but merely a personal right, which did not pass by the conveyance to complainant.

The chancellor heid that the sixth and seventh grounds of demurrer to the bill were merely general demurrers, and therefore refused to consider them. Under the general principles of the law before the enactment of our statute, demurrers were either general or special ; 'the former being deemed sufficient when the bill was defective in substance, and the latter being required where the objection was to the form of the bill. And they are said to be general “when no particular cause is assigned except the usual formulary * * * that there is no equity in the bill,” and special “when the particular defects or objections are pointed out.” Story’s Eq. PI. (10th Ed.) p. 416, § 455; 1. Beach’s Modern Equity Practice, pp. 268, 269, § 231; 6 Ency. PL & Pr. p. 411. And Barton, in his Forms, gives the form of general demurrer in about the same terms as above set forth, and for a form of special demurrer gives as an example the allegation “that there is no privity between the said complainant and this defendant,” etc. Barton’s Suit in Equity, pp. 86, 87. Our statute allows no demurrer “but to matter of -substance, which the party demurring specifies.”' Code 1896, § 3303. So the effect of our statute is to make all demurrers special, and, taking the authorities on the general subject and the wording of our own statute, it does not seem to be necessary to go into all the particulars and minutiae which go- to make up the objection, but merely, in the language of the general authorities, to “point out the particular defects or objections,” or, in the language of our statute, to “specify” them. Our- own courts have frequently held that a demurrer which merely states that.“there is no equity in the bill” is general. — McGuire v. Van Pelt, 55 Ala. 344; Beebe v. Morris, 56 Ala. 525. The same has been held with regard to other words which are merely the equivalent of that expression. — M. & M. Ry. Co. v. Crenshaw, 65 Ala. 566; Williams v. Bowdin, 68 Ala. 126. Where the demurrer was merely to certain words in the complaint (reciting them), it was held not a compliance with our statute, because, although it did point out the portion of the complaint demurred to, it did not state the objection to it; and the court says: “It should point out and specify the defect or defects on which the party demurring asks the judgment of the court.”— Burns v. Mayor, etc., 34 Ala. 485, 487. And in the case of McGuire v. Van Pelt, supra, Brickell, C. J., stated the trouble to he that “it does not point out in what respect the hill wants equity.”

On the other hand, a demurrer to a petition for rehearing, because “the petitioner had not complied with the law governing such petitions, and that the court had no jurisdiction or power to grant the prayer,” was sustained. State, to Use, etc., v. Gardner, 45 Ala. 46, 50. It has been held sufficient to state “that the bill is multifarious, that complainants have an adequate remedy at law,” that certain parties should or should not have been made parties, etc. — Beebe v. Morris, 56 Ala. 525. Also “that the alleged accident, fraud, or mistake was not shown to have occurred without the fault of plaintiff,” as it points out with reasonable certainty the defect on which the party demurring prays the judgment of the court. — Brock v. S. & N. Ala. R. R., 65 Ala. 79, 82. This court has also declared that, if a bill contains no equity, it would not be error for the chancellor to dismiss it, even though there he no demurrer. — Lesslie v. Richardson, et al., 60 Ala. 563-568. In a case in the Chancery Court of New Jersey, based on their statute, which requires “every demurrer * * * to state the particular grounds of the demurrer,” the chancellor cites, the English decisions on a rule similar to our statute to the effect that the object of the law was merely to meet those cases where the grounds of demurrer were obscure and could not be necessarily understood by the mere general allegation, and that, even under that rule, “where the court- finds, on looking at the complainant’s bill, that his riglit to relief is doubtful or uncertain, or, in the words of Sir George Jessel, that his equity is not obvious at first sight, there a simple statement of want of equity will, under the rule, constitute a sufficient specification of the ground of demurrer.”- — Essex Paper Co. v. Greacen, 45 N. J. Eq. 504, 19 Atl. 466.

Without going to the extent of the English decisions as adopted by the New Jersey court, we hold that the sixth and seventh grounds of demurrer in this case sufficiently specify the matter of substance to which the demurrer was made. The bill is clearly filed to enforce the right -of redemption, which is purely the creat-ure of the statute, and the statute clearly states what classes of persons are authorized to redeem, so that the meaning of said demurrers is clearly that the complainant has not shown by the bill that the complainant occupies either of the relations- mentioned in the statute. It would not have been any clearer or more specific if it had stated that the bill does not show that the complainant is either “'the debtor, his vendee, junior mortgagee, or assignee of the equity of redemption from the purchaser or his vendee.” Under this view of the case, the other grounds of demurrer were without merit.

The decree of the court- is reversed, and the cause remanded.

Haralson, Dowdell, Anderson, and Denson, JJ., concur.