Johnson v. Smith

• Decision Date: 07 November 1914
• Docket Number: 528
• Citation: 67 So. 401,190 Ala. 521
• Parties: JOHNSON v. SMITH.
• Court: Alabama Supreme Court

67 So. 401

190 Ala. 521

JOHNSON v. SMITH.

No. 528

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Chancery Court, Elmore County; W.W. Whiteside Chancellor.

Bill by Tempie Smith against Dave Johnson to redeem land from mortgage, with cross-bill for foreclosure. From a decree granting the relief prayed in the original bill, and denying relief under the cross-bill, respondent appeals. Affirmed.

C.H Roquemore and E.T. Graham, both of Montgomery, for appellant.

J.M Holley and George F. Smoot, both of Wetumpka, for appellee.

MAYFIELD J.

Appellee, as mortgagor, filed this her bill against appellant as assignee of a certain mortgage. The sole purpose of the mortgagor is to redeem the land from the mortgage. The right of redemption sought to be exercised is the equitable right, and not the statutory right.

The bill alleges a sufficient excuse for not tendering the amount due and necessary to be paid, on redemption, before the filing of the bill. It appears that complainant is an ignorant and uneducated negro woman, that she was ignorant of the exact amount due, that the respondent was claiming as due an amount largely in excess of the real amount, and that a tender of the true amount, if it had been known to complainant, or could have been ascertained by her upon an accounting for that purpose, would have been unavailing. What was said by Stone, C.J., in Root v. Johnson, 99 Ala. 92, 10 So. 294, is in exact point in the case at bar:

"The law does not exact the observance of a vain ceremony. The purpose of tender, in a case like the present, is to leave the seller without excuse for a noncompliance with his contract, and to cast on him the fault of its breach. When, before tender made, the party to whom money is due declares he will not receive it, or makes any declaration or demand which is equivalent to a refusal to accept the money, if tendered, then actual tender is dispensed with. 7 Wait's Act. & Def. 593. It was sufficient, in this case, to tender payment in the bill. This renders it unnecessary that we should pass on the weight or credibility of the conflicting testimony bearing on the question of the alleged tender made by Johnson of the whole amount due, before instituting this suit."

This was not a bill seeking to exercise the statutory right, and therefore the bill need not show a compliance with the conditions or terms of the statute, as to tender, demand, etc. The requisites of bills to exercise the statutory right of redemption are materially different from those of bills to exercise the equitable right. The one right is a mere privilege conferred by the statute on the mortgagor and others mentioned in the statute, and the conditions imposed on the mortgagor or other persons by the statute must be complied with, or a good and valid excuse given for failure therein, else the bill is demurrable; while the other is a right created by courts of equity to protect the mortgagor from the loss of his property, but secures to the mortgagee the full payment of his mortgage debt. The one is the creature of the statute; the other, of courts of equity. The one does not exist until the other is cut off. The foreclosure which cuts off and terminates the latter right gives rise to, and is the inception of, the former right. Both rights cannot, therefore, exist as to the same property and between the same parties at the same time and under the same conditions.

The respondent demurred to the...