Butler v. Hannah

• Decision Date: 23 May 1894
• Citation: 103 Ala. 481,15 So. 641
• Parties: BUTLER ET AL. v. HANNAH.
• Court: Alabama Supreme Court

15 So. 641

103 Ala. 481

BUTLER ET AL. v. HANNAH.

Supreme Court of Alabama

May 23, 1894

Appeal from chancery court, Madison county; Thomas Cobles Chancellor.

Bill by Laura B. Hannah against James E. Butler and others to redeem lands sold under execution. From a decree for plaintiff defendants appeal. Reversed.

William Richardson, for appellants.

Lawrence Cooper, for appellee.

COLEMAN J.

Laura B. Hannah, as the owner and holder of a judgment against Andrew J. Hannah, filed the present bill to redeem certain lands which had been sold under execution issued upon a judgment recovered by a different creditor against the said Andrew J. Hannah, and which lands were purchased by James E Butler. The bill was filed within two years, and we hold the averments are sufficient to entitle complainant to relief if sustained by the proof. The statute provides the terms upon which one judgment creditor may redeem lands from a purchaser at execution sale or from another judgment creditor. In construing the statute, this court has uniformly held that the redemptioner must tender to the purchaser or his vendee the purchase money and 10 per cent. per annum thereon, and all lawful charges; and unless this is done before the filing of a bill to redeem, or some sufficient reason for not making the tender is shown, the redemptioner is not entitled to relief. Beebe v. Buxton (Ala.) 12 So. 567; Lehman, Durr & Co. v. Moore, 93 Ala. 186, 9 So. 590. The bill avers distinctly that the tender was made to James E. Butler, and the answer denies with equal emphasis that any money whatever was tendered. Andrew J. Hannah, the husband of the complainant, was the only witness examined to prove the tender. He swears positively to a tender to James E. Butler in gold coin, of the proper amount, and 10 per cent. per annum. His evidence sustains the averments of the bill. James E. Butler testified positively that no such tender was made that "neither A. J. Hannah nor Laura B. Hannah, nor any one acting for them," tendered him any money before the bill was filed. He says A. J. Hannah came to him with a paper, and wanted him to sign an acknowledgment that a legal tender had been made, "which witness refused to do, as he had made no tender of any cash." The evidence is irreconcilable, and there is nothing that would justify a reasonable conclusion that the complainant had made good the averment of a tender. It would appear from the...