Hamilton v. Cody

• Decision Date: 21 April 1921
• Docket Number: 3 Div. 495
• Citation: 89 So. 240,206 Ala. 102
• Parties: HAMILTON v. CODY.
• Court: Alabama Supreme Court

89 So. 240

206 Ala. 102

HAMILTON v. CODY.

3 Div. 495

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill by W.C. Hamilton against Michael Cody to effect a statutory redemption after mortgage foreclosure sale. From a decree denying the relief claimed, complainant appeals. Affirmed.

John R Tyson, of Montgomery, and Arthur L. Brown, of Birmingham, for appellant.

Rushton & Crenshaw and Ball & Beckwith, all of Montgomery, for appellee.

McCLELLAN J.

Bill to effect statutory redemption (Code, § 5746 et seq.), filed by appellant against appellee. From a decree on the merits denying such redemption, the complainant appeals. An accurate statement of the facts will foreshadow the unavoidable reesult on appeal.

In 1915 the Tri-States Realty Company was the owner of the real estate in question. On November 25, 1915, the Tri-States Realty Company executed to the Selma Trust & Savings Bank its first mortgage on this property to secure an indebtedness of $10,000. This first mortgage was transferred and assigned to Mrs. Gertrude Jones, who, because of the mortgagor's default, foreclosed it on May 12, 1917, under the power of sale therein provided. At this foreclosure sale W.C. Hamilton (complainant-appellant) became the purchaser at the bid sum of $11,086.48. On May 15, 1917, Hamilton, the purchaser received from Mrs. Jones a foreclosure deed to the properties in question, this instrument being filed for record May 18 1917. On that date (May 18, 1917) a mortgage on these properties from Hamilton to Mrs. Jones to secure $9,500 was filed for record, the recited date of this mortgage being May 12, 1917, but not acknowledged until May 17, 1917. Upon default by Hamilton (mortgagor to Mrs. Jones), this mortgage was foreclosed under the power of sale; and Mabry Securities Company became the purchaser at that foreclosure sale, the consideration in the foreclosure deed from Mrs. Jones (mortgagee) to Mabry Securities Company being recited as $11,191.06

In the brief filed here for appellant this is the avowal: "It is from this foreclosure that redemption is sought."

Now as to Cody's (defendant-appellee's) relation and status in the premises, the bill's theory and object being to redeem from Cody:

On February 4, 1916, the Tri-States Realty Company executed to J.C. Crowson its mortgage on this land (subordinate to the before mentioned mortgage to the Selma Trust & Savings Bank) to secure an indebtedness to Crowson; and on March 8, 1916 this mortgage was transferred and assigned to Cody, the defendant-appellee in this cause. See Allison v. Cody, present term, 89 So. 238. On April 1, 1919, Cody recorded a deed from the Mabry Securities Company describing the lands here sought to be redeemed under the statute. That the design and effect of this transaction between Cody and the Mabry Securities Company--the then repository of the title to the land, the subject-matter--was a statutory redemption (Code, § 5746) from the foreclosure under the first mortgage, referable to and exercised by Cody as the transferee of the Crowson second prior mortgage, which assignment constituted Cody a "junior mortgagee" within the purview of the statute (Code, § 5746), is a conclusion not at all doubtful under this record.

Statutory redemption is founded on, its process is governed by, and operates upon the title, directing the act of redemption under the statute to the divestment of the title out of the possessor thereof and the investment of it in the statutory redemptioner, upon his compliance with the requisites to effect the statutory purpose. Morrison v. Formby, 191 Ala. 104, 107, 67 So. 668. The Mabry Securities Company had become the repository of the title to these lands, subject alone, as far as the foreclosure of the first mortgage from the Tri-States Company to the Bank was concerned, to the right (privilege) of redemption defined by the statute (Code, § 5746 et seq). Jackson v. Tribble, 156 Ala. 480, 489, 490, 47 So. 310; Lehman, Durr & Co. v. Shook, 69 Ala. 486, 491, 492; 10 Mich.Ala.Dig. pp. 194, 195: Allison v. Cody, supra.

To the Mabry Securities Company must any statutory redemptioner from the foreclosure of the first mortgage executed by the Tri-States Realty Company to the Bank have had recourse in the premises. The Mabry Securities Company was a vendee within Code, § 5746, of Hamilton, who was the purchaser at the foreclosure sale under the first mortgage, executed by the Tri-States Realty Company to the bank. The Securities Company was none the less a vendee, within the statute, though its investment with the title (subject to the statutory privilege of redemption created by the foreclosure of such first mortgage on May 12, 1917) resulted, through orderly processes, from the mortgage executed to Mrs. Jones by the purchaser (Hamilton) at the foreclosure sale (on May 12, 1917). That foreclosure created the statutory right (privilege) of redemption, which persisted for the statutory period of...