Baker v. Burdeshaw

• Citation: 132 Ala. 166,31 So. 497
• Parties: BAKER v. BURDESHAW.
• Decision Date: 13 February 1902
• Court: Supreme Court of Alabama

31 So. 497

132 Ala. 166

BAKER v. BURDESHAW.

Supreme Court of Alabama

February 13, 1902

Appeal from circuit court, Henry county; John P. Hubbard, Judge.

Action by Joe Baker against C. V. Burdeshaw. From a judgment on demurrer against defendant, he appeals. Reversed.

Espy Farmer & Espy, for appellant.

H. A Pearce, for appellee.

SHARPE J.

Stocks v. Young, 67 Ala. 341, is cited by the appellant as authority for the proposition that a bill to enforce the statutory right of redemption must allege possession of the land was delivered within 10 days from the sale. The opinion in that case seems to point out as an objection to the bill there considered that it did not contain such allegation. But from the same opinion it is seen there may be cases meriting relief where such an averment would be improper, as where possession has been retained by consent of the purchaser. The same can be seen from the statute: "The possession of the land must be delivered to the purchaser within ten days after sale thereof, by the debtor if in his possession, or of any one holding under him by privity of title if in his possession, on demand of the purchaser or his vendee." Since there can be no delivery on demand where there is no demand, it follows that in such case the redemptioner is not precluded from redeeming simply by not delivering possession. The statute has been construed as interposing a condition precedent, so that, to stand in the attitude of redemptioner, the debtor, if of the class referred to, must have complied with its requirements. Henderson v. Hambrick (Ala.) 29 So. 923; Stocks v Young, supra; Nelms v. Kennon, 88 Ala. 329, 6 So. 744. And a similar construction was placed on the statute as it formerly existed, when it was silent as to demand and the 10-days period, and the condition was simply for delivery of possession. Clay, Dig. p. 503, § 5; Paulling v. Meade, 23 Ala. 505; Sandford v. Ochtalomi, Id. 669. Therefore, to show such compliance, a bill should allege either a delivery of possession in accordance with the statute, or a valid reason for not delivering. Such reason would ordinarily be furnished by the absence of a demand for possession. The purpose of the provision in question is not to coerce a transfer of possession, except at the purchaser's option. It is to facilitate his entry on the land, and, being in his interest solely, he can waive and remove the condition. To his demand, whether made after or within 10 days, the possessor is bound to respond. Without it the latter's retention of possession may well be referred to consent. This bill may be deficient in failing to show the alleged delivery was pursuant to the first demand of defendant, but the demurrer does not point out this objection.

Tender of the redemption money, though ordinarily essential to precede the suit, is not always so. When to make a...