Burke v. Brewer

• Decision Date: 15 April 1902
• Citation: 32 So. 602,133 Ala. 389
• Parties: BURKE v. BREWER. [1]
• Court: Alabama Supreme Court

32 So. 602

133 Ala. 389

BURKE v. BREWER. ^[1]

Supreme Court of Alabama

April 15, 1902

Appeal from chancery court, Lowndes county; W. L. Parks, Chancellor.

Suit by Michael Burke against Willis Brewer. From a decree for defendant, complainant appeals. Affirmed.

After averring in his bill that he had tendered to the defendant $5,500, the bill contained the recital that the complainant paid into the registry of said court $5,500. There was also an offer on the part of the complainant to do equity. The prayer of the bill was that the complainant be permitted to redeem the lands described in the bill from the defendants that there be a reference to the register to ascertain what amount was necessary to be paid in order to effect such redemption, etc. On the final submission of the cause the chancellor rendered a decree denying the relief prayed for and ordering the bill dismissed. From this decree the complainant appeals, and assigns the rendition thereof as error.

W. C Oates, E. F. Jones, Gordon Macdonald, and John D. McNeel, for appellant.

Powell & Middleton, for appellee.

DOWDELL J.

The bill filed in this cause is essentially for the enforcement of a statutory right of redemption. It possesses not a single element necessary to the assertion by the mortgagor of any right he may claim to have had to enforce his equity of redemption. The regularity of the sales under the respective mortgages is not in any wise assailed. On the contrary, the validity of those sales is fully recognized. Being a bill pure and simple, to enforce an alleged statutory right of redemption, one of the essential prerequisites to its maintenance is the payment or tender by the complainant to the respondent, within two years after the sales under the mortgages, of the purchase money, with 10 per centum thereon and all other lawful charges. Section 3507 of the Code, and authorities cited under it. We do not understand this proposition to be controverted, but the fact in dispute between the parties arises over the amount that should have been tendered. Stating the complainant's contention most strongly, it is that the amount due to respondent was $3,600 on the sales under the Tulane mortgages, and $2,745 on the sale under the Tyson mortgage, aggregating the sum of $6,345. The testimony is in hopeless and irreconcilable conflict on this point, and we shall not undertake to determine who has the right of it, as it is unnecessary, under the view we take of the case. The complainant did not tender the $6,345, which he admits, both in his bill and testimony, was the amount of the purchase money which was a charge upon the land sought to be redeemed. He predicates his contention for declining to do so upon a credit claimed by him of $1,600 arising from a sale of the Kendrick place, made by the respondent after he became the owner of the lands, the redemption of which is not sought by the bill, and tendered only the balance of the purchase money after deducting this credit. To a better understanding of the question as to his right to this credit, it will be well to state, in short, some of the facts: The complainant being the owner of two separate tracts of land, one known as the "Hale Place" and the other as the "Kendrick Place," executed to one Tulane two mortgages; one of these conveying the Hale place, and the other both places. He also executed to one Tyson a mortgage upon both places. These mortgages were foreclosed in January and February, 1896, and both tracts purchased by the respondent's vendors, from whom shortly afterwards (on, to wit, February 12th) he acquired the title thereto. In March following the respondent sold and conveyed to one Whitten, upon a consideration of $1,600 paid, the Kendrick place. On the 26th day of September, 1896, the complainant tendered to the respondent $5,500; being the balance claimed by complainant to be due him as purchase money, and 10 per centum thereon, after deducting the $1,600 which the respondent had received from Whitten. This bill was filed on the 14th of September, 1899, and seeks only a redemption of the Hale place, keeping good the tender of the...