Goodwin v. Donohue, 8 Div. 590.

• Decision Date: 14 June 1934
• Docket Number: 8 Div. 590.
• Citation: 155 So. 587,229 Ala. 66
• Parties: GOODWIN et al. v. DONOHUE et al.
• Court: Alabama Supreme Court

155 So. 587

229 Ala. 66

GOODWIN et al. v. DONOHUE et al.

8 Div. 590.

Supreme Court of Alabama

June 14, 1934

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

Bill in equity by Julia Donohue and others against C. A. Goodwin and others. From a decree overruling a demurrer to the bill respondents appeal.

Reversed rendered, and remanded.

Street & Bradford, of Guntersville, for appellants.

P. W Shumate, of Guntersville, for appellees.

KNIGHT Justice.

Bill by complainants, appellees here, to enforce statutory right of redemption.

It is made to appear from the averments of the bill that Julia Donohue, Doshia Donohue, Catherine (Donohue) Rutherford, along with Sallie Donohue, who is now dead, executed and delivered to Margaret Nettles a mortgage on the land sought to be redeemed, and which is fully described in the bill, to secure an indebtedness of $600. This mortgage was executed on December 1, 1921. The bill does not show the maturity date of the instrument.

Thereafter, on April 2, 1926, the same parties, with the exception of Sallie Donohue, who was then dead, made and executed a mortgage on the same land to Mrs. Dona Leach to secure "her for the amount of money that was due at that time and which she paid to the said Margaret Nettles for the transfer of said note and mortgage to her." It appears that the indebtedness was not paid at the time the mortgages were foreclosed, but remained valid liens on the property.

The bill avers that the lands were sold under the decree of the circuit court of Marshall county to "satisfy the amount due under the mortgages on the 6th day of February, 1932, to C. A. Goodwin and Company, at and for the sum of six hundred and no/100" (dollars).

Thereafter the said Goodwin & Co. sold and conveyed the lands to W. A. Artis, one of the appellants, for the sum of $1250.

It is further averred in the bill that complainants gave possession of the land to said C. A. Goodwin and Company on the day of the sale, or shortly thereafter; that the said W. A. Artis is in possession of the land, "and has cut, sold and removed and disposed of a large amount of valuable timber since he has had possession of said lands, said timber being saw stock, board trees and other trees of value."

Paragraph 9 of the bill appears in the report of the case.

The prayer of the bill is that the complainants be let in to redeem the lands; and that it he referred to the register to ascertain and report to the court what is justly due and unpaid on said mortgages after allowing all credits due complainants for and on account of the rents and profits and for such timber that has been cut, sold, or in any way disposed of by the said W. A. Artis from the lands involved in the suit. The complainants aver their readiness and willingness to pay into the court the amount that may be ascertained "to be due to redeem said lands from said sale."

Construing the bill most strongly against the pleader, as we must do, it is essentially a bill to enforce statutory redemption, for it appears that the two mortgages were duly foreclosed under a decree of the circuit court, in equity; that at the sale under said decree C. A. Goodwin & Co. became the purchaser of the property; that possession of the premises was surrendered to said purchaser, and thereafter said Goodwin & Co. sold and conveyed the property to Artis.

Upon foreclosure of a mortgage, whether under a decree of a court of competent jurisdiction or under the power of sale in the mortgage, the equity of redemption of the mortgagor is extinguished, leaving thereafter in him only the statutory right of redemption, which the mortgagor may assert by complying with the requirements of statutes conferring such right.

The bill does not aver that payment, or any tender of the purchase price, the interest thereon, and all other lawful charges, as required by the statute, section 10145 (Code 1923), were made to the purchaser or his vendee prior to the filing of the bill, nor does the bill show any sufficient excuse for the failure to do so. Such tender, in the absence of an averment showing sufficient excuse for not making it accompanied with the payment of the amount tendered into court, is essential to the...