Crawford v. Horton

• Decision Date: 13 May 1937
• Docket Number: 8 Div. 790
• Citation: 234 Ala. 439,175 So. 310
• Parties: CRAWFORD et al. v. HORTON et al.
• Court: Alabama Supreme Court

175 So. 310

234 Ala. 439

CRAWFORD et al. v. HORTON et al.

8 Div. 790

Supreme Court of Alabama

May 13, 1937

Rehearing Denied June 24, 1937

Appeal from Circuit Court, Jackson County; A.E. Hawkins, Judge.

Bill for redemption by Oscar Horton and others against J.M Crawford and another. From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

J.A Lusk & Son, of Guntersville, for appellants.

D Isbell, of Guntersville, for appellees.

THOMAS Justice.

The appellants assign error for the overruling of demurrer to the bill.

The averments in that pleading are to be taken as true on demurrer. Lake v. Sealy et al., 231 Ala. 466, 165 So. 399; First Nat. Bank of Opp v. Boles, 231 Ala 473, 165 So. 586.

The demurrer as filed is treated to the bill as a whole. Wood v. Estes, 224 Ala. 140, 139 So. 331; Messer v. Union Central Life Ins. Co.,

227 Ala. 120, 148 So. 852. The demurrer was not directed to any particular aspect, and if in any aspect the bill had equity, such demurrer was properly overruled. City of Birmingham v. Louisville & N.R. Co., 216 Ala. 178, 185, 112 So. 742.

There were two aspects presented by the pleading. First, that Mrs. Lucy E. Campbell had the statutory right of redemption when she became a bankrupt, and the trustee waived any such right that had accrued to the estate in her favor, and that this gave her the authority to sell and transfer the same to appellees Horton and Elder. The second aspect is that if it is held that Mrs. Campbell did not have the right of transfer of her statutory right of redemption to complainants, then Kelly, her trustee in bankruptcy, sought to perfect redemption as trustee for her and her assignor, using their tender and funds to effectuate redemption. This will indicate the inaptness of the general demurrer in this bill for redemption for the party or parties entitled to exercise the statutory right.

The bill avers a mortgage indebtedness of date of December 1, 1922, by J.A. Campbell to the land bank on 563 acres of land, specifically described, in the sum of $8,000, payable by installments, the first maturing on December 1, 1923; that Campbell and wife on January 10, 1923, executed and delivered to J.R. and Lucy Campbell a mortgage on said lands for $9,750; and on July 3, 1923, executed and delivered to the last-named grantees "an absolute deed of conveyance" to said land; that such grantees (or one of them, J.R. Campbell) took immediate possession and continued in the open and notorious possession of same, claiming to be the owner and in rightful possession to the time of the death of Mr. Campbell, on or about August 15, 1924.

The bill alleges default, foreclosure on November 12, 1924, and purchase by mortgagee under the powers within the mortgage by the Federal Land Bank; that immediately after foreclosure the Federal Land Bank took and continued in possession by and through its agents, claiming under "said Land Bank, down to the present time," the date of filing the bill, October 30, 1936.

It is averred that James R. Campbell died without the state on the date indicated above, leaving at his death a last will and testament conveying all his property, including the land described, to his wife, Lucy E. Campbell. The will and its probation is exhibited and will aid the bill. Grimsley v. First Ave. C. & L. Co., 217 Ala. 159, 115 So. 90; Sturdavant et al. v. First Ave. C. & I. Co., 219 Ala. 303, 122 So. 178. It is further averred that on November 13, 1935, said Lucy E. Campbell was declared a bankrupt by the United States District Court for the Eastern District of the state of Tennessee, at Knoxville, Tenn., and trustees were appointed; that his contract of sale was submitted to the creditors and to the court; that one John M. Kelly was regularly appointed trustee of said bankrupt estate of Lucy E. Campbell; that said regularly appointed and acting trustee entered into a contract of sale of the equitable and statutory right of redemption of said land to Oscar Horton and Carey Elder; that the proposition to sell said right of redemption to Oscar Horton and Carey Elder was submitted to the bankrupt court in the presence of the creditors of said estate; that the trustee, John M. Kelly, at that time reported to the court that there was a Federal Land Bank mortgage against the land and it would take some $10,000 or more to redeem the land and the estate was without funds or resources to perfect such redemption, but that Oscar Horton and Carey Elder had offered the sum of $450 for a deed conveying to them all the right, title, and interest and the equitable and statutory rights of redemption of said land.

It is further alleged in the bill, as to this phase:

"That the Trustee, with the consent and agreement of the creditors of said Bankrupt Estate, recommended that said proposition of Oscar Horton and Carey Elder to buy said rights of redemption of said land be approved and that all the right, title and interest in said land and rights of redemption both equitable and statutory, be sold and transferred to said Carey Elder and Oscar Horton, and this recommendation of said Trustee of said estate, and by the consent of the creditors of said estate was approved by the Court and said Trustee authorized and directed to execute and deliver to said Oscar Horton and Carey Elder, on the consideration herein named, the entire interest of said Bankrupt, Lucy E. Campbell, in and to the lands described in this Bill of Complaint, together with the equitable and statutory rights of redemption of said land from said Federal Land Bank mortgage."

The bankrupt proceedings leading to the making of deed to complainants was attached to and made a part of the bill of complaint as an exhibit, and it is averred that if the attempted sale of said lands to said Horton and Elder has not the effect under the law to transfer to them the right of redemption either equitable or statutory, and if said trustee has not otherwise waived his rights as such trustee to redeem said land, then said Trustee offered and adopted the tender made by Oscar Horton and Carey Elder for the purpose of redeeming said property and joined other complainants in offering to do equity and abide by the orders and decrees of the court, and to pay any additional amount necessary for redemption; that on or about May 14, 1936, complainants served written request on defendants to furnish complainants with the amount of debt and all lawful charges necessary for redemption; that on May 25, or May 26, 1936, respondent presented a statement of the debt and lawful charges claimed for redemption of said land, stating that he was willing to let the land be redeemed and would waive any possible irregularities on the question of redemption and would confer with complainants or their counsel as to the amount of redemption.

No definite agreement as to the amount necessary to redeem was made between the parties. The Federal Lank Bank furnished respondent with statement of amount necessary to redeem, but stated that redemption would have to be perfected through Crawford, the purchaser from the bank. A tender is averred to have been made to Crawford in the sum of $12,411.56 on or about October 10, 1936, with the statement that many of the charges and items were too large and in the case of filing a bill for redemption complainants would contest some or all of said items and ask the court to ascertain the true amounts that should be paid to perfect said redemption. It is averred that the tender of said amount for redemption was refused on the idea that they did not understand that complainants had the right to redeem said property from said foreclosure sale; that on or about October 19, 1936, Lucy E. Campbell, a bankrupt, sold and conveyed to Oscar Horton and Carey Elder the said land, together with her equitable and statutory right of redemption; that John M. Kelly, trustee of the estate of Lucy E. Campbell, by and through orders of the court and the consent and approval of creditors, had waived his statutory right to redeem said land from said Federal Land Bank mortgage, leaving said bankrupt, Lucy E. Campbell, free to transfer or convey her statutory right or her equitable right of redemption to any one she might see fit; that a copy of said consent agreement is attached as a part of the bill of complaint as Exhibit No. 13. And the bill further alleges "That said Bankrupt, Lucy E. Campbell, at the time she was declared a bankrupt had at least statutory right to redeem the land in question,--this was a personal privilege and the Trustee in Bankruptcy of the Estate of said Bankrupt at most only had the privilege as such Trustee of redeeming said property for the Bankrupt Estate and this equity of redemption continued in Lucy E. Campbell as against all the world except the Trustee in Bankruptcy and the Trustee in Bankruptcy at most only held the right to exercise and perfect redemption and if the Trustee did not do this and manifested, either, expressly or impliedly, that he had waived this right of redemption (Which he did in this case) the Bankrupt, Lucy E. Campbell, had the right to sell and transfer such right and exercising this privilege did sell the right to redeem to Oscar Horton and Carey Elder."

It is averred that the second tender to Crawford in the sum indicated, with interest thereon at 6 per cent. to October 26, 1936, viz., $12,442.50, was made, the trustee in bankruptcy (John M. Kelly) joining therein, and that a statement was made along with said tender for redemption that many of the charges and items were too large and that in case of the filing of a bill for redemption that complainants would contest some or all of said items and asked the court to ascertain the true amount that should be paid to...