Thе appeal is taken from an interlocutory decree overruling the demurrer -.of defendants averring, among other grounds, • that the bill does not allege that complainant offered to redeem before bringing the suit, that Belle Wootten, wife of S. B. Wootten, .was not a necessary or proper party thereto, .and misjoinder of parties in the different relief sought against defendants Callahan and the Woottens, and also from a final decree permitting the redemption and ascertainment of the amount due and аllowing to complainant credit for certain sums Teeeived as rents of the land by respondent S. E. Wootten, and taxing costs against defendant Wootten. Appellants S. E. Wootten and Belle Wootten severally assign error and insist upon the' same in argument of cоunsel.
On final hearing it will be necessary to know the nature of the title acquired by and character of the possession of a junior mortgagee purchasing at foreclosure sale of a
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senior mortgage. As such purchaser taking possession of the lands after foreclosure, is such possession and the subsequent receipt of income and profits from said lands to be referred to that of the owner of the title or as a mortgagee taking possession of the mortgaged property without foreclosure? The nature and difference between the right of redemption of real estate under the statute, where the equity of redemption has been foreclosed (Code 1907, § 5746 et seq.), and the right and exercise of the equity of redemption by a mortgagor, where the same has not been foreclosed, has been the subject; of frequent discussion by the courts. The distinction between the nature and exercise of such rights or interest and the respective liabilities of the parties as distinguished by the courts must be kept in mind to a right decree for redemption under the statute in the instant case. Johnson v. Smith,
Of tender and sufficient explanation and excuse for its failure, Mr. Justice Mayfield recently stated:
“What was said by Stone, C. J., in Root v. Johnson,99 Ala. 92 ,10 South. 294 , is in exact point in the case at bar: ‘The law does not exact the observance of a vain ceremony. The purpose of tender, in a case like the present, is to leave the seller without excuse for a noncompliance with his contract, and to cast on him the fault of its breach. When, before tender made, the party to whom money is due declares he will not receive it, or makes any declaration or demand which is equivalent to a refusal to accept the money, if tendered, then actual tender is dispensed with. 7 Wait’s Act. & Def. 593. It was sufficient, in this ease, to tender payment in the bill.’ ” Johnson v. Smith,190 Ala. 521 , 524,67 South. 401 , 402.
Was, then, the primary purpose of the bill for redemption? Appellee’s counsel prefaced their argument filed in this court with the statement that—
“This is a bill filed by W. W. Vaughn, appellee, to redeem 40 acres of land held by appellant under a mortgage foreclosure sale.”
However, they further define their position as follows:
“The chief point in this case which appellant is relying [on] is the fact that appellee did not offer to redeem, or tender the amount due on the mortgage to the appellant before filing this bill. This was not done, of course, and under appellee’s bill in this case no tender, or offer to rеdeem, was necessary before the filing of the bill. This is not a bill to redeem under the statutory right of redemption. Johnson v. Smith,190 Ala. 521 ,67 South. 401 . The mort *687 gage given by appellee to appellant has never been foreclosed, but appellant is endeavoring to hold title to said land undеr a mortgage foreclosure with which appellee had no connection whatever. In other words, appellant is trying to shield himself with his own wrong and is asking the court in this case to disregard the rights of appellee after he has received $214 on the mortgage he holds against appellee for the purchase price of said land.”
If we look to the prayer of the bill to denominate its primary purpose, it will be noted it is asked: (1) That complainant be allowed to redeem said land on the payment of the balance due on the purchase price — mortgage of $400 given by W. W. Yaughn and wife to S. B. Wootten on June 13, 1916, and falling due, according to its terms, November 1st of said year, being secured by the N. E. % of the S. W. 14 of. section 2, township 6, range 8, Containing 40 acres, conveyed by J. T. Vaughn and wife to W. W. Vaughn on said June 13, 1916, and reciting a' consideration of $500; (2) that all crops received by defendant Wootten during the year 1916 which were grown on the land belonging to complainant be decreed to be a credit on said mortgage, and that the chattel mortgage from said Yaughn to Wootten conveying the crops therein contained be declared collateral to said mortgage; (3) that the mortgage executed by Wootten and wife to W. T. Callahan be enforced primarily against the N. W. 14 of the S. W. % and the S. W. % of the N. W. % оf said section, township, and range, if it be ascertained that said land is of greater value than the amount due on the Callahan mortgage, and that complainant’s land be released from said mortgage ($400 purchase-money mortgage above adverted to), and the same' canceled as a cloud on complainant’s title; (4) that,- after the application of said corn, cotton, and other produce as credit on said mortgage due, defendant Wootten be permitted to redeem said land from dеfendant and from said foreclosure sale, as made on December 11, 1916, on the payment of the balance, if any, due on said mortgage after the application of said crops as received by said Wootten on said mortgage, and that complainant’s mortgage be canceled.
Under this evidence it was error to allow complainant credit for the amount of the rents on the 80 acres of land conveyed by J. T. Vaughn rather than confining such allowance to the east 40 thereof, which was purchased and conveyed by said J. T. Vaughn to complainant W. W. Vaughn.
Reversed and remanded.