Ensley Mortgage & Realty Co. v. Lewis

• Decision Date: 13 May 1915
• Docket Number: 937
• Citation: 193 Ala. 226,68 So. 1012
• Parties: ENSLEY MORTGAGE & REALTY CO. v. LEWIS.
• Court: Alabama Supreme Court

68 So. 1012

193 Ala. 226

ENSLEY MORTGAGE & REALTY CO. v. LEWIS.

No. 937

Supreme Court of Alabama

May 13, 1915

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Bill by the Ensley Mortgage & Realty Company against Ivey F. Lewis to redeem from execution sale. Decree for respondent, and complainant appeals. Affirmed.

Anderson C.J., and McClellan and Thomas, JJ., dissenting.

The bill alleges: That on December 12, 1912, complainant, for a valuable consideration, purchased from J.J. Braswell the following described property or land situated in Jefferson county, Ala. (here follows description), and took possession thereof, erected two houses thereon, and rented same to tenant, who went into possession under said contract of rental; petitioner having filed the deed from Braswell and wife on January 8, 1913, in the probate office of Jefferson county, which said deed was duly recorded. That on February 10, 1912, W.H. Barnard obtained a judgment in the city court of Birmingham against the said J.G. Braswell and wife, in the sum of about $300 and the court costs, which judgment or a certificate thereof was filed for record in the probate office of Jefferson county on November 5, 1912. That on February 10, 1913, subsequent to the time petitioner took charge of the property, execution was issued on said judgment, and on April 20, 1913, said sheriff of Jefferson county did sell such property as and for the property of said J.G. Braswell, the execution creditor becoming the purchaser at said sale, and that subsequently thereto he executed and conveyed by a quitclaim deed the said property to Ivey F Lewis; the bill further denying that Barnard or Lewis, or any agent of either of them, ever served petitioner with written notice to surrender possession of said property, but did by threats intimidate or persuade them, inducing complainant's tenant to pay rent to them. The bill then alleges the request for information as to the amount required to redeem, and the failure and refusal of Lewis to furnish such amount. The answer sets up demand and refusal to surrender possession made upon M.L. Smith and A.S. Tubbs, as tenants occupying said property, as well as upon J.G Braswell and his wife, which written demand was made within 10 days after such sale, copies of which are set out. It further sets up unlawful detainer by complainant against the tenant after their attornment to respondent, and also attachment suits and their levy upon the property of the tenants to satisfy the rents by the said complainant.

W.H. Woolverton, of Birmingham, for appellant.

Ivey F. Lewis and H.A. Dickinson, both of Birmingham, for appellee.

SAYRE J.

Appellant filed its bill under the statute to redeem from the vendee of a purchaser at execution sale. On hearing the pleading and proof, the court below dismissed the bill.

This appeal requires a statement of our conception of the operation and effect of the redemption statute in the circumstances shown. The statute (section 5747 of the Code) says:

"The possession of the land must be delivered to the purchaser, within ten days after the sale thereof, by the debtor, if in his possession, or of any one holding under him by privity of title, if in his possession, on written demand of the purchaser or his vendee. If the land is in the possession of a tenant, written notice by the purchaser, or his vendee, of the purchase, after the lapse of ten days from the time of the sale, and that it has not been redeemed, vests the right to the possession in him, in the same manner as if such tenant had attorned to him."

The purchaser is entitled to possession, for that is made a condition of the debtor's right to redeem.

"The language of the statute, and the equity of such cases, both require that the purchaser should have possession of the lands, that he may enjoy the rents and profits in the meantime, since the sum required to be tendered by the statute embraces only the purchase money, with 10 per cent. interest, and it could not be tolerated that the defendant in execution should have the rents, when they often amount in value to a much larger sum than the purchase money and the interest required, and almost invariably to a larger amount than the 10 per cent. interest." Paulling v. Meade, 23 Ala. 513.

The first half of the statute (Code, § 5747) declares that:

"The possession of the land must be delivered to the purchaser, within ten days after the sale thereof, by the debtor, if in

his possession, or of any one holding under him by privity of title, if in his possession, on written demand of the purchaser or his vendee."

A tenant holds in privity of title with his landlord, of course, but that is not the privity of the statute, because the last half of it makes a different provision in cases where a tenant is in possession. In this case a tenant of the debtor or his vendee was in possession. It results that the first half of the statute has nothing to do with the case. The provision of the second half of the statute is that:

"If the land is in the possession of a tenant, written notice by the purchaser, or his vendee, of the purchase, after the lapse of ten days from the time of the sale, and that it has not been redeemed, vests the right to the possession in him, in the same manner as if such tenant had attorned to him."

"The legal effect of such notice, when given, is to constitute the tenant in possession the tenant of the purchaser, and thereby abrogate his fealty to the former owner, transfer his possession to the purchaser, and substitute the latter as his future landlord, with the ordinary rights growing out of this relationship." Comer v. Sheehan, 74 Ala. 452; Richardson v. Dunn, 79 Ala. 167.

This is the provision, and the only provision, that operates in this case. Appellee, vendee of the purchaser at the execution sale, gave notice to the tenants of appellant in possession as provided in the second half of the statute,...