Beatty v. Browne

• Decision Date: 22 December 1893
• Citation: 14 So. 368,101 Ala. 695
• Parties: BEATTY v. BROWNE.
• Court: Alabama Supreme Court

14 So. 368

101 Ala. 695

BEATTY v. BROWNE.

Supreme Court of Alabama

December 22, 1893

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs Chancellor.

Bill to redeem by William M. Beatty against Randall R. Browne. There was decree for defendant on demurrer to the bill, and plaintiff appeals. Affirmed.

The bill avers the execution of the mortgage by the complainant to the defendant, failure to pay the debt secured thereby and the foreclosure of said mortgage, setting out the amount paid at said sale, and the purchase at said mortgage sale by the mortgagee, who is the defendant to the bill. The mortgage referred to was a mortgage executed by the complainant to the defendant on certain lands, which were bought of the defendant by the complainant, and the said mortgage had been duly foreclosed by a decree of the chancery court. The bill does not allege any prior tender to the defendant of the amount paid by him at the sale, and the interest and charges required by statute of one who seeks to redeem; nor does the bill offer to do equity by the payment to the defendant of the discrepancy in the amount paid at the sale and the mortgage debt; nor does the bill allege that the complainant has paid into court the amount required by statute; nor did he, as matter of fact, pay such amount into court. The complainant sets up, as an excuse for his failure to make such averments in the bill, and to tender the amounts required by statute, that he was unable to ascertain for what amount he was liable, owing to certain matters alleged in his bill of complaint. These certain matters set up as an excuse may be summarized as follows: (1) Misrepresentation by the defendant in the original sale to complainant as to the existence or extent of a certain railroad right of way over the lands, which, it is averred, the complainant did not discover in time to obtain redress for the same in the foreclosure proceedings; (2) failure of title to 40 acres of the land sold; (3) waste committed by the defendant in cutting down timber and removing houses from the land subsequent to the sale; (4) that the defendant had received a large amount of rents subsequent to the sale; and (5) that the defendant had recovered, since the sale at which he purchased, over $500, which, it was alleged, was a part of the same debt for which the land was sold. The defendant demurred to the bill, the principal grounds of which demurrer were that the bill fails to show that the complainant has complied with all the statutory requirements which entitle him to redeem, in that he does not aver the tender of the amount required by statute, nor is there shown a valid and sufficient excuse for this failure; and that the bill fails to aver that the complainant offered to do equity. The defendant also moved to dismiss the bill for the want of equity. The chancellor sustained the demurrer, and granted this motion, and his decree in this behalf is assigned as error.

T. L Beatty, for appellant.

Hargrove & Van de Graaff and J. J. Mayfield, for appellee.

McCLELLAN J.

A bill to effectuate a mortgagor's statutory right of redemption, which right exists, of course, only after foreclosure, is without equity unless it avers the tender which the statute requires to be made to the purchaser or his vendee. This results from the terms of the statute itself (Code, § 1881,^[1]) as has been declared by this court in the following, among other cases: Paulling v. Meade, 23 Ala. 505; Spoor v. Phillips, 27 Ala. 193; Carlin v. Jones, 55 Ala. 624; Stocks v Young, 67 Ala. 341; Lehman v. Collins, 69 Ala. 127; Pryor v. Hollinger, 88 Ala. 405, 6 So. 760; Lehman v. Moore, 93 Ala. 186, 9 So. 590; Beebe v. Buxton, (Ala.) 12 So. 567. In no case has it been decided that tender and an averment of the fact are not essential, though there may possibly be a dictum in one of the cases to that effect; and there are one or two cases which, upon casual reading, might seem to support that view, but these will, on examination, be found to involve bills to assert and effectuate the equity of redemption, which exists only, of course, before foreclosure. As respects the purchase money bid and paid for the land at the foreclosure sale, and the 10 per cent. per annum thereon, a tender must in all cases be made, alleged, and proved, and such tender, when practicable, must be made to the purchaser or his vendee before bill filed. If this is not done, the bill must allege a valid and sufficient excuse for the complainant's failure to do it. Where such excuse exists, and is alleged, the bill must go further,...