Johnson v. Davis

• Decision Date: 19 December 1912
• Citation: 60 So. 799,180 Ala. 143
• Parties: JOHNSON v. DAVIS ET AL.
• Court: Alabama Supreme Court

60 So. 799

180 Ala. 143

JOHNSON v. DAVIS ET AL.

Supreme Court of Alabama

December 19, 1912

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Bill by P.J. Johnson, as trustee in bankruptcy, against J. B. Davis and others. From a decree sustaining a demurrer to the bill complainant appeals. Decree affirmed in part and reversed in part, and cause remanded.

Pace &amp Chapman, of Dothan, for appellant.

W. O Mulkey, of Geneva, for appellees.

ANDERSON J.

This bill is filed to enforce the statutory right of redemption in lands sold under a mortgage given by the bankrupt and of whose estate the complainant is the trustee under the Bankruptcy Act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 544 [U. S. Comp. St. 1901, p. 3418]).

Prior to Code 1907, § 5746, an assignee of the "statutory right" of redemption could not redeem. Indeed, it has been repeatedly held that the statutory right of redemption, as distinguished from the equity of redemption, was a mere privilege or right personal to the debtor, that it was neither property nor the right of property, and that it was not subject to levy or sale under execution. Burke v. Brewer, 133 Ala. 392, 32 So. 602; Powers v. Andrews, 84 Ala. 291, 4 So. 263. The present statute, however (Code 1907,§ 5746), authorizes the exercise of the right of redemption by the assignee of the statutory right, so the question of importance is whether or not the trustee of the bankrupt mortgagor is an assignee of the statutory right to redeem within the contemplation of the statute. When the mortgagor was adjudged a bankrupt, the statute authorized redemption by the assignee of the statutory right, and Bankr. Act, § 70, vested the trustee with the title to all property of the bankrupt as well as certain powers and rights including "powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person," etc. It is plain that the mortgagor could have exercised this right for his own benefit prior to his bankruptcy, and it is equally plain that the trustee became vested with this right, under the bankruptcy law, upon the adjudication of bankruptcy. This holding is supported by analogy in the case of Robinson v. Denny, 57 Ala. 492. "A state court passing upon claims of an assignee is not a proceeding under the Bankruptcy Act, but simply recognizes that act as the source of the assignee's title, in like manner as it would if such title were derived from a contract or deed." Andrews v. Mather, 134 Ala. 368, 32 So. 738. We hold that this complainant is an assignee of the statutory right of redemption, and has the right to enforce same under the terms of the statute.

There can be no doubt of the soundness of the proposition that, in order to redeem under the statute, the complainant must make a tender or show a sufficient excuse for a failure to do so. The only excuse that this complainant attempts is to charge that the written statement of the debt and lawful charges furnished him by the respondents was not correct, and that he was, therefore, relieved by section 5748 of the Code of 1907 from making a tender with his bill of complaint. That is to say, he does not dispute the correctness of the statement as to the amount of the debt owing, but contends that the statement exceeds the sum necessary to redeem, for the reason that respondents included $1,000 worth of personal property in the mortgage and sale thereunder, which should be credited to complainant in case of a redemption of the land. In other words, the respondents got $1,000 worth of personal property which they will not account for if the complainant has to...