Brannan v. Adams

• Decision Date: 13 February 1919
• Docket Number: 1 Div. 49
• Citation: 80 So. 826,202 Ala. 442
• Parties: BRANNAN et al. v. ADAMS.
• Court: Alabama Supreme Court

80 So. 826

202 Ala. 442

BRANNAN et al. v. ADAMS.

1 Div. 49

Supreme Court of Alabama

February 13, 1919

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill by Elsie B. Adams against Thomas H. Brannan and John P. McKay for redemption from sale under vendor's lien, and for a reference to ascertain the amount necessary to effect the redemption. Decree overruling the demurrers to the bill, and respondents appeal. Affirmed.

Case made by the bill is: That W.B. McCoy and wife conveyed to David M. Lombard by warranty deed two lots in the city of Mobile, for a consideration of $300, $150 of which was paid at the time, and the other $150 was to be paid in one year with interest at the legal rate; the vendor reserving a lien for the unpaid purchase money in the deed. That McCoy and wife transferred their vendor's lien by deed of conveyance to Alice Hudoff, and this deed was recorded in the probate office. The date of the deed from McCoy to Lombard was April 12, 1916, and the date of the deed transferring the vendor's lien from McCoy to Hudoff was April 17, 1916.

On November 12, 1917, Alice Hudoff foreclosed said vendor's lien under the power contained in the deed from McCoy to Lombard, and bought in the property at the sale for recited consideration of $203.15. Hudoff conveyed to Thomas H Brannan by statutory warranty for a consideration of $204.70 all right, title, and interest in the property. Brannan paid $54.70 in cash, and Hudoff reserved the lien for $150 balance of purchase money, which lien she transferred by deed recorded to John P. McKay. Prior to the foreclosure of the vendor's lien reserved by McCoy in his deed to Lombard which foreclosure was made by Hudoff, Lombard and wife executed to oratrix a mortgage on said property for the sum of $75, evidenced by promissory note payable six months after date. All the papers herein referred to are made exhibits to the bill. Oratrix avers that on December 18, 1917, she made written demand upon Brannan for a statement of the mortgage debt and all the lawful charges claimed by him, and that Brannan ignored her demand and has failed and refused to furnish said statement. The demurrers are: No equity in the bill, and that it does not appear that complainant has any right to redeem.

Sullivan & Stallworth, of Mobile, for appellants.

William Cowley, of Mobile, for appellee.

SAYRE J.

Elsie B. Adams filed this bill against Thomas H. Brannan and John P. McKay, seeking to redeem under the statute certain lots in the city of Mobile as against the foreclosure of a vendor's lien, expressly reserved, with a power of sale, in a deed from W.B. McCoy to David M. Lombard. McCoy, according to the bill, had transferred his lien to Alice Hudoff, and she had purchased at her own foreclosure sale. She then conveyed the land to Brannan, reserving a vendor's lien for a part of the consideration upon which that conveyance was made, and afterwards transferred her lien to McKay. In the meantime--that is, prior to the foreclosure aforesaid--Lombard mortgaged the lots to complainant. The demurrer of defendants to the bill was overruled, whereupon they appealed.

Section 5746 of the Code provides that--

"Where real estate, or any interest therein, is sold under execution, or by virtue of any decree in chancery, or under any deed of trust, or power of sale in a mortgage, the same may be redeemed," etc.

And the main question raised by the appeal is whether on the facts stated complainant has a right to redeem by virtue of the statutory provision, supra, for redemption in case of a sale under a power of sale in a mortgage. At first the right to redeem was conferred upon the debtor only (Code of 1852, § 2116), and in that respect this court long pursued the policy of strict construction. Appellant quotes at some length from Powers v. Andrews, 84 Ala. 289, 4 So. 263, and Commercial Association v. Parker, 84 Ala. 298, 4 So 268, where that policy and the reason for it are stated. During that time the "right to redeem" was held to be "a mere personal privilege." But the Legislature has from time to time adopted an increasingly liberal policy, until now the right of redemption, as defined by the statute (section 5746), falls within the common definition of property, as the right to possess, use, enjoy, and to sell or otherwise dispose of a thing according to the will of the owner, without diminution or control, save only by the law of the land. 32 Cyc. 677. The right is an interest in property, descendible as other property rights, and transferable either before or...