Godfrey v. Black

• Decision Date: 20 June 1940
• Docket Number: 7 Div. 619.
• Citation: 240 Ala. 151,197 So. 892
• Parties: GODFREY ET AL. v. BLACK.
• Court: Alabama Supreme Court

197 So. 892

240 Ala. 151

GODFREY ET AL. v. BLACK.

7 Div. 619.

Supreme Court of Alabama

June 20, 1940

Rehearing Denied Oct. 10, 1940.

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

Suit for statutory redemption of lands, sold under deed of trust by John Black against Edna Godfrey and another. Decree for complainant, and respondents appeal.

Reversed and remanded.

Reed &amp Reed, of Centre, for appellants.

Irby A Keener, of Centre, for appellee.

FOSTER Justice.

This is a suit in which appellee seeks and was granted the statutory right of redemption of land contained in a deed of trust. The land was bought in at the sale by an officer of the bank, who is alleged to have immediately conveyed it to the bank. The bank sold it to Rogers-Horton Company, and it in turn sold it to Mrs. Godfrey.

The bill does not allege that any amount of money is brought into court under section 10147, Code. It alleges facts thought to be sufficient to relieve complainant of this duty. They are here tested by demurrer.

Complainant claims the right to redeem from two sources. If either is sufficient the right exists, though the other may or may not be sufficient. He first claims under a conveyance by the mortgagor made after the foreclosure, which is sufficient under section 10140, Code, if the mortgagor was then in position to make such grant. Being apparently doubtful of the existence of his right from that source, he became the transferee of a junior deed of trust. Although he was not a junior mortgagee at the time of the foreclosure, when the status of the persons under section 10140, Code, is primarily fixed, he became an "assignee of the * * * statutory right of redemption," by becoming as assignee of a junior mortgagee who had such right under the statute. See Hamilton v. Cody, 206 Ala. 102, 89 So. 240. There is no question here of priority of right under section 10141, Code.

After complainant obtained a conveyance from Vandiver, the mortgagor, he made demand of Mrs. Godfrey under section 10144, Code, for a statement of the debt and lawful charges. She responded showing three items aggregating $377, and a fourth of $183.07--"Paid J. A. Vandiver by Rogers-Horton Co. for his statutory right of redemption." The bill alleges that "said demand was illegal, void and not a lawful charge as contemplated by the statute," and that he tendered to her $377, which she refused to accept. That the statement was exaggerated and illegal, and that he cannot reasonably ascertain the amount he should tender.

After he is alleged to have acquired the second mortgage, he made another demand for a statement under the statute, to which she promptly responded with one. It was the same as the other only one item (three) was changed from $25 to $50, and another added as follows: "Lien or encumbrance of judgment J. L. Brannon and Company paid or owned by the undersigned against J. A. Vandiver $200.00."

The rule is recognized in all our cases that when some of the items in the statement furnished are so exaggerated or illegal or disputed in fact as that the true amount cannot reasonably be ascertained, a tender with a bringing into court are not necessary. The refusal of a tender does not of itself relieve complainant of the necessity of bringing it into court, nor does a denial of the right to redeem. See Kelly v. Carmichael, 217 Ala. 534 (17), 117 So. 67. The statute relieves the complainant of that duty only when he does not know the amount that is due and the purchaser has failed after due demand to furnish him with an itemized statement as required by section 10144, Code (Lacy v. Fowler, 206 Ala. 679, 91 So. 593; section 10147, Code), or when the statement is so exaggerated, illegal or disputed as that he cannot know the true and correct amount to be paid. Cummings v. Vann, 215 Ala. 488, 111 So. 229; Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Dorrough v. Barnett, 216 Ala. 599, 114 So. 198.

When complainant contends that the value of the permanent improvements is exaggerated, as furnished on demand, and that is the only item of substantial dispute shown, the complainant is relieved of the duty of bringing into court the amount so included only when he has complied with sections 10153 and 10154, Code. Cummings v. Vann, supra.

If the objectionable item is for permanent improvements, and the amount of their value only is in dispute, those sections of the Code are applicable. But if as to it or as to other items, the question raised is as to its legality, there should be more alleged in the bill than that it is illegal, if under any state of facts, not conflicting with what is alleged, it may be legal, or if its illegality is not otherwise apparent upon the face of the bill. If it is contended that the amount of the charge is exaggerated, there should be a statement of such facts as will show that it is so. A complainant cannot be relieved of the statutory duty by his mere assertion of a conclusion or opinion that a claim is illegal or exaggerated unless the facts alleged lead to that result. Ewing v. First National Bank of Montgomery, 227 Ala. 46, 148 So. 836, Id., 228 Ala. 307, 153 So. 243.

Item No. 3, supra, is for "clearing, reclaiming and preparing lands." The objection is not as to the value of so doing as a permanent improvement, so as to require a referee under section 10153, Code, but that preparing land is not a lawful charge. This court has observed that permanent improvements mentioned in section 10153, Code, means anything that enhances the value of the land, including such as restores the property after injury or decay, and so preserves it against the day of redemption, and includes repairs which are permanent, but not necessarily of an everlasting character, and includes every form of expenditure of labor or capital conforming to the general notion. The court was there dealing with repairs to a house including the roof and chimney and painting, plastering and screening. Smith v. Sulzby, 205 Ala. 301, 87 So. 823.

The idea of "preparing" the land is not disconnected from that of "clearing or reclaiming" in item 3, supra. In the absence of an allegation to the contrary, the item refers to one process of clearing and reclaiming woods or waste land, and preparing it for use and cultivation. The allegations of the bill do not show that this was not a permanent improvement as thus defined. Restoring waste land is as much so as restoring a house wasted by decay.

We cannot agree with the contention of appellee that on the face of the bill, this item does not show a permanent improvement. Whether complainant is excused from bringing money into court, not having complied with section 10153, Code, depends upon whether other items in the statement are illegal or exaggerated, and whether the bill sufficiently so alleges within the rule of pleading to which we have referred.

The fourth item is as follows: "Paid J. A. Vandiver by Rogers-Horton Company for his statutory right of redemption $183.07." The allegation in the bill is that Vandiver never assigned his right of redemption to Rogers-Horton Company. This allegation is sufficient to show the non-existence of any such claim as a lawful charge. Thereupon, on the principle we have mentioned, it is a sufficient excuse for not bringing money into court, and for overrruling the demurrer to the bill on that ground. It is not a permanent improvement, and not to that extent under section 10153, Code, calling for a reference. So that we need not consider the last item to which objection is made for the purpose of determining the necessity of paying money into court on demurrer to the bill.

We may here observe that if complainant makes an allegation in a bill of facts sufficient to relieve him of this necessity, and such facts are denied in the answer and the proof fails to sustain them, the result would be a denial of relief to complainant, since he would not in that event have complied with the requirements of the statute. He cannot evade the statute by the assertion of facts not true. We will later explain that the allegation in the bill to this extent was sustained by the proof, and that instead of Vandiver assigning his right of redemption as set forth in this item, he made a new arrangement and created a new contractual status, in an exercise of that right.

We now will discuss other features of the contentions of appellant by which it is claimed that complainant does not possess the statutory right here asserted on which alone he rests his claim to the relief which was granted by the court.

It is contended in the answer that the foreclosure sale was voidable at the instance of Vandiver because at the foreclosure sale the bank bought in the property through an officer, which it had no right to do under the deed of trust because the bank was the beneficiary in the deed of...