Beebe v. Buxton

• Decision Date: 03 November 1892
• Citation: 12 So. 567,99 Ala. 117
• Parties: BEEBE v. BUXTON ET AL.
• Court: Alabama Supreme Court

12 So. 567

99 Ala. 117

BEEBE v. BUXTON ET AL.

Supreme Court of Alabama

November 3, 1892

Appeal from chancery court, Montgomery county; John A. Foster chancellor.

Bill by Eugene Beebe against William H. Buxton and others to redeem land sold under a mortgage. There was judgment for defendants, and plaintiff appeals. Affirmed.

A demurrer was interposed by the defendant, on the ground that the bill does not allege that any tender or payment of money with the costs, was made to the mortgagee, defendant in this suit, or that the money and costs were paid into court at the time of the filing of the bill; and that, therefore, the complainant would not be entitled to redeem under the statute. The chancellor sustained this demurrer; and the present appeal is taken from his decree in that behalf, and the same is assigned as error.

A. A Wiley and Tompkins & Gray, for appellant.

Brickell Semple & Gunter, for appellees.

WALKER J.

The statutory right of redemption is purely the creature of legislation, and can only be exercised by the persons named in the statute, in the mode, within the time, and upon the conditions there prescribed. Powers v. Andrews, 84 Ala. 289, 4 South. Rep. 263. One of the essential conditions to the exercise of the right is the payment or tender by the redemptioner to the purchaser, or his vendee, of the purchase money, with 10 per cent. per annum thereon, and all other lawful charges. Code, § 1881; Acts Ala. 1888-89, p. 764. The statute not specifically prescribing the mode in which the tender must be made, the absence of the purchaser or his vendee from the state is recognized as an excuse for a failure to make the tender to him in person, and as occasioning a necessity to file a bill for redemption, in which the tender may be made. To the sufficiency of a tender made in this way, the payment of the money into court is essential. Spoor v. Phillips, 27 Ala. 193; Trimble v. Williamson, 49 Ala. 525; Alexander v Caldwell, 61 Ala. 543; Caldwell v. Smith, 77 Ala. 157; Stocks v. Young, 67 Ala. 341. When the bill is one to enforce the equitable right of redemption before foreclosure, an offer therein to pay all that may be found due, on the taking of the account prayed, is sufficient. In such case an averment of a tender before the filing of the bill is only material as affecting the question of costs, and is not essential to the equity of the bill. Thomas v. Jones, 84 Ala. 302, 4...