Lehman, Durr & Co. v. Moore

• Citation: 93 Ala. 186,9 So. 590
• Court: Alabama Supreme Court
• Decision Date: 24 June 1891
• Parties: LEHMAN, DURR & CO. ET AL. v. MOORE.

9 So. 590

93 Ala. 186

LEHMAN, DURR & CO. ET AL. v. MOORE.

Supreme Court of Alabama

June 24, 1891

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

The bill in this case was filed by the appellee, John W. Moore against the appellants, and prayed to be let in, under the statute, to redeem certain lands sold under the power of sale contained in the mortgage. The facts alleged in the bill are substantially as follows: The complainant and R. J. Chambers were owners, as partners, on January 1, 1888, of certain real estate in the city of Montgomery, and on that day executed a mortgage to one John J. Flowers, to secure an indebtedness due him from them; that in March, 1888, the partnership was dissolved, its property divided, and that Chambers agreed to convey the real estate in controversy to the complainant, but failed to do so; that on the 1st day of February, 1890, the said note and mortgage were transferred and assigned by said Flowers to one S. Roman; that, on default of the payment of the mortgage indebtedness, the said Roman, on the 21st day of March, 1890, in Greenville, Ala., sold the property conveyed in said mortgage, at public outcry, under the power contained therein, and O. O. Nelson and W. L. Chambers became the purchasers, and were let into the possession of the same, but a deed to them had not been put upon record, and the complainant was unable to state the amount of the purchase money; that on the same day of their purchase the said Nelson and W. L. Chambers borrowed from Lehman, Durr & Co. the sum of $11,600, and executed to them a note for the said amount secured by a mortgage on the property, the said note being payable two years after date; that on the same day said Chambers and Nelson leased the said property to Lehman, Durr & Co. for a term of two years, and gave them a written option to purchase the same at a price not exceeding the amount of the loan; but that the complainant did not know whether Lehman, Durr & Co. had exercised that option, and cannot state who is the owner of said property; and that Lehman Durr & Co. had made, or caused to be made, some material changes and alterations on the buildings on said property. The bill then avers that the complainant had not made any offer or tender to redeem said property before the filing of his bill, and assigns, as grounds for the failure to do so that the said property had been mortgaged to Lehman, Durr & Co., and an option given them to buy it, and that complainant did not know whether they had availed themselves of said option; that W. L. Chambers being a resident of Sheffield, Ala., and Nelson a resident of Montgomery, Ala., he was unable to make a tender to both of them at the same time; that he had been advised that the tender would be unlawful, because said Chambers and Nelson had parted with the legal title to Lehman, Durr & Co.; and that he could not make a tender to Lehman, Durr & Co., because they were not the vendees, but merely mortgagees; and, further, because two of the firm resided in the state of New York. The bill then offers to pay to the parties who may be ascertained to be entitled to it the amount of the purchase money, with a rate of 10 per cent. interest per annum, and all legal charges, and the value of permanent improvements, and offered to pay the money into court, if so ordered by the court. The bill makes all of the parties, except the complainant, parties defendant, and prays that, on the final hearing, the complainant be allowed to redeem the entire property, and that the same be vested in him free from all claim or right of redemption on the part of said R. J. Chambers; that it be referred to the register to ascertain the amount necessary to be paid to entitle the complainant to redeem said property, and that a decree be rendered allowing him to redeem, and directing to whom the amount so ascertained to be due shall be paid; and that, upon the amount being paid, all the right, title, and interest be divested out of the parties defendant to this suit, and that said property be vested in the complainant; and the bill further prays for an injunction, restraining said Lehman, Durr & Co. from further altering or changing said property. The bill also contains the general prayer. The defendants demurred to the bill, and assigned eight grounds of demurrer. The first ground is that the bill contains no equity; the second, fifth, and sixth grounds are based on the failure of complainant to make a sufficient tender of the purchase money; the fourth and eighth grounds are that the complainant, being the owner of only one-half interest in the property, was not entitled to redeem the same under the statutes of this state; the third and seventh grounds of demurrer are that the complainant is, at most, entitled to redeem only a half interest in the property, whereas he seeks to redeem the whole property. Upon the cause being submitted on demurrer, the chancellor overruled each and every ground thereof. This appeal is brought by the defendant, and the chancellor's decree on the demurrers is assigned as error.

Tompkins & Troy, for appellants.

Lester C. Smith, for appellee.

MCCLELLAN J.

The mortgage, from a sale under which the present bill seeks to assert the statutory right of redemption, was executed January 1, 1888. Under then existing statutes, (Code, §§ 1879-1891) it was the settled doctrine of this court that the right could not be exercised by, or rather did not exist in favor of, an assignee or grantee of the equity of redemption. Powers v. Andrews, 84 Ala. 289, 4 South. Rep. 263; Aiken v. Bridgeford, 84 Ala. 295, 4 South. Rep. 266; Association v. Parker, 84 Ala. 298, 4 South. Rep 268. And the right as then defined by the statute, and this judicial construction of it, could not be enlarged or extended to persons not entitled to it, when the mortgage was executed by subsequent legislation. Hence it is that the complainant cannot call to his aid the provisions of the act of February 27, 1889, (Acts 1888-89, p. 764,) conferring this right on grantees of the equity of redemption, but must stand in this case as if there had been no grant or assignment to him of the interest of his partner; Chambers, in the land now sought to be redeemed. 2 Jones, Mortg. § 1051; Bronson v. Kinzie, 1 How. 311; Howard v. Bugbee, 24 How. 461, reversing Bugbee v. Howard, 32 Ala. 713. So far, therefore, as it is sought to rest complainant's right to redeem on the alleged dissolution of the partnership between him and Chambers, to...