Francis v. White

• Decision Date: 15 April 1909
• Citation: 160 Ala. 523,49 So. 334
• Parties: FRANCIS ET AL. v. WHITE.
• Court: Alabama Supreme Court

49 So. 334

160 Ala. 523

FRANCIS ET AL. v. WHITE.

Supreme Court of Alabama

April 15, 1909

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

Suit by R. B. White, as administrator of C. C. Sheats, against W. R Francis and others. From a judgment for complainant defendants appeal. Affirmed.

Callahan & Harris, for appellants.

E. W. Godbey, for appellee.

MAYFIELD J.

By the bill the complainant seeks to exercise the statutory right of redemption under chapter 133 of the Code of 1907 (section 5746 et seq.). The property involved consists of town lots and unplatted property in or near the town of Decatur, all of which was sold under execution against C. C. Sheats, the intestate of R. B. White, the redemptioner, and was purchased at execution sale by W. R. Francis, who has since conveyed parts thereof to the other respondents. The whole was sold together, and the bill seeks to redeem the whole.

Redemption cannot be effected by piecemeal. It must be of the entire tract sold, no matter how many the subpurchasers of parts thereof. Roulhac v. Jones, 78 Ala. 398; Harden v. Collins, 138 Ala. 404, 35 So. 357, 100 Am. St. Rep. 42. As the statute confers a mere right or privilege upon the debtor, he must conform to the requirements of the statute by delivering possession to the purchaser, and by the payment or tender of the purchase price together, with 10 per centum per annum thereon, and all lawful charges, and must pay to the person in possession the value of all the permanent improvements. The statute directs how the amount of the value of the permanent improvements may be determined. These are all made conditions precedent to redemption, or revesting of the title in the debtor. The statute, however, contemplates that the redemption be perfected out of court between the parties by each party's doing that which the statute directs. A resort to equity is only necessary when the purchaser or creditor refuses to accept the tender and to convey, and declines to inform the debtor of the amount necessary to be tendered, when known to him and not to the debtor, or when it is impossible or impracticable for the debtor to conform to the requirements of the statute without the aid of a court of equity. If the debtor could be sure that he had paid or tendered all that the statute requires, this payment or tender would have the effect, under the very language of the statute, to reinvest him with the title, and the purchaser must reconvey to him. Code 1896, § 3507. It is most often the case that resort is had to equity to perfect the statutory right, because without the aid of the court the debtor cannot know the exact amount necessary to be paid or tendered. The main object of the bill is often to ascertain this fact. If the debtor knows the exact amount which he must pay or tender, or if by the exercise of due diligence he can ascertain it without the aid of the court, then his bill for this purpose would be without equity. Equity will not undertake to do that which the debtor should have done for himself. So, in the bill to redeem under the statute, the debtor must either aver a payment or a tender of all the amounts by the statute required, or to show a valid excuse for failure therein, before filing, such as nonresidency of purchaser, or redemptioner's inability to ascertain the amounts necessary to be paid or tendered, and ask the court to aid him in ascertaining the true amounts, and offer to pay such amounts before insisting upon his right to redeem or to be reinvested with the title. Francis v. White, 142 Ala. 590, 39 So. 174. Payment nor tender of the amounts necessary to redeem is not in all cases a prerequisite to the filing or maintaining of the bill, yet it is always such to the perfection of the right to redeem, and the bill must offer to pay or tender such amounts when ascertained, and show a valid excuse for not so doing before the filing of the bill as well as a good reason why the aid of the court is necessary for this special purpose.

The bill in this case we think conforms to all the requirements necessary for a bill to redeem under the statute. The complainant offers to pay every dollar which the statute requires as a condition...