Whiteman v. Taber
87 So. 353
Ala.
1921
Check Treatment
*320 SOMERVILLE, J.

Tbe equity of this bill was settled on a former appeal, and against tbe main contentious of appellant here. Whiteman v. Taber, 203 Ala. 496, 83 South. 595. We see no reason now to change or amplify what we.said and held on that appeal.

[1] It is insisted that complainant is the assignee of an assignee of the statutory right of redemption here asserted, and is therefore not entitled to exercise the’ right. As a matter of fact, Mrs. Whitem'an never actually assigned the right in question to Baker, and if she breached, or if she and Baker mutually abandoned an executory and conditional agreement in that behalf, it was clearly no concern of respondent’s. Mrs. Whiteman assigned her right to complainant, and not to Dr. Baker.

[2] It is further insisted that the assignment was fictitious'and fraudulent, and that therefore a court of equity will not allow the assignee to prosecute this suit. This contention does not find support in the record. It is of course the law, as held in Nicrosi v. Calera Land Co., 115 Ala. 429, 22 South. 147, that a court of equity will not allow the prosecution of claims which by simulation merely have been assigned for the purpose of evading equitable defenses which could have been asserted against the assignor. Such is not the case here.

[3] Appellant invokes the rule, also, that only the real party in interest can maintain a suit. But in a suit like this the “real party in interest” is the person who owns the right which is sought to be enforced. The fact, if it be a fact, that this complainant intends to surrender its fruits to her sister, the mortgagor, at some future time, though she is under no legal obligation to do so, is not of legal significance. This question, however, seems to have been settled adversely to appellant’s contention on the former appeal.

[4] If all that appellant charges in this respect should be conceded, it would not show nor tepd to show any fraud in the premises.' The sole object of the statute in giving this right of redemption was to afford protection to those whose rights would otherwise be cut off and lost by a foreclosure, and of course to prevent purchasers like -appellant from acquiring forthwith an indefeasible title for a substantially inadequate price. Certainly the prosecution of this suit for the purpose charged is in accord with the policy of the statute.

[5] We fully concur in the finding of the trial court that appellant was properly chargeable with the value of the crops removed after he should have surrendered possession of the place to appellee. The report of the referees shows that they allowed, and included in their finding, as a part of the aggregate sum required for redemption, $300 for the value' of these growing crops. Obviously appellant could not rightfully keep the money thus allowed and applied, and at the same time take and use the crops. It was within the power and it was the duty of the trial court to “settle and adjust all the rights and equities of the parties.” Code, § 5751. Giving due weight to all the testimony relative to the rental value of the place, for which appellant was chargeable, we are unable to say that the finding of the trial court was erroneous or excessive.

[8] The point is made by appellant that the tender upon which complainant relies was not kept good at all times between the date of the tender and the payment of the money into court, in that the money belonged to Dr. Baker and was returned to him after the tender, and deposited by him in a bank to his own credit. It appears, however, that the money was furnished by Dr. Baker to the complainant under an agreement with her, and under that agreement it was kept ready and available for tbe use stipulated until it was paid into court upon the filing of the bill. This is all that is necessary in such cases, and the identical money tendered need not be retained in specie.

We find no error in the record, and we think that the judgment, should be affirmed.

Affirmed.

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