Francis v. White

• Decision Date: 14 April 1910
• Citation: 52 So. 349,166 Ala. 409
• Parties: FRANCIS ET AL. v. WHITE.
• Court: Alabama Supreme Court

52 So. 349

166 Ala. 409

FRANCIS ET AL. v. WHITE.

Supreme Court of Alabama

April 14, 1910

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Suit by R. B. White, administrator, against W. R. Francis and others. Decree for plaintiff. Defendants appeal. Affirmed.

Callahan & Harris, for appellants.

E. W Godbey, for appellee.

SAYRE J.

This is a bill filed under the statute to redeem from an execution sale. The sufficiency of the amended bill as stating a right to relief in equity has been thrice considered here, and sustained. See 142 Ala. 590, 39 So. 174; 150 Ala. 679, 43 So 1019; 49 So. 334. The question now presented was raised by a plea filed on the last return of this case to the chancery court. The plea avers that after the execution sale the defendant in execution, redemptioner's intestate, joined with the purchaser at the execution sale in a conveyance of a part of the property to a third party, one Brock, with covenants of warranty. The plea was filed as an answer to the bill as a whole, and for that reason the plea was overruled. Necessarily the conveyance was a waiver and renunciation of the right to redeem the part conveyed. It left the grantor without interest in that parcel. Appellants' contention is that necessarily also it operated as a waiver and renunciation of the right to redeem the rest, and this for the reason that redemption cannot be effected by piecemeal.

When this case was here on the last appeal it was said "Redemption cannot be effected by piecemeal. It must be of the entire tract sold, no matter how many the subpurchasers of parts thereof"--citing Roulhac v. Jones, 78 Ala. 398, and Harden v. Collins, 138 Ala. 399, 35 So. 357, 100 Am. St. Rep. 42. In Lehman v. Moore, 93 Ala. 189, 9 So. 592, it was said that "the statute itself provides for and requires the redemption of whatever interest passed by the foreclosure sale." There was no decision, nor anything calling for a decision, that, when an execution debtor conveys his right of redemption in a part of the property sold, he either forfeited, waived, or renounced thereby his privilege under the statute as to the remainder of the estate, or that his vendee acquired an exclusive right to redeem. Certainly there was no decision that, if the purchaser at a mortgage or execution sale suffers a redemption of a part of the property, insisting upon the payment of the entire debt and lawful charges, as he has an unquestioned right to do, he thereby becomes entitled to hold the remainder of the estate. The right to do that was denied in Lehman v. Moore, where it was said that it would be an anomaly, which the law does not contemplate and will not tolerate, to require the redemptioner to make the purchaser whole in respect of all he has expended in consideration of the land, and at the same time leave half that consideration in his hands. The statutory right of redemption, originally a privilege conferred upon the mortgagor or execution debtor alone, has by subsequent enactments been made vendible and descendible, and is conferred upon the assignee of the equity or statutory right of redemption, among others. The right of redemption is favored by the law. There is no reason why the requirement that the entire debt and the entire property shall be redeemed should be more rigid in the case of statutory redemption than in the case of an equity of redemption asserted before foreclosure. One reason for the rule that the mortgagee cannot be compelled to divide his debt and security...