Johnson v. Williams
| Decision Date | 18 December 1924 |
| Docket Number | 4 Div. 176 |
| Citation | 102 So. 527,212 Ala. 319 |
| Parties | JOHNSON v. WILLIAMS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Dale County; J.S. Williams, Judge.
Bill in equity by Melissa Johnson against J.H. Williams. From a decree sustaining demurrer to the bill, complainant appeals. Affirmed.
Sollie & Sollie, of Ozark, for appellant.
Riley & Stokes, of Ozark, for appellee.
The bill was for redemption, demurrer was sustained, and complainant appeals. The bill is by the wife, and is not subject to the forfeiture created by Code of 1907, § 5747. Thomas v. Blair, 208 Ala. 48, 93 So. 704.
A resort to equity is only necessary when (1) the creditor or purchaser (a) refuses to accept the tender and to convey, or (b) declines to inform the debtor or redemptioner of the amount necessary to be tendered, when known to him and not to the debtor or redemptioner; or (2) it is impossible or impracticable for the debtor or redemptioner to conform to the requirements of the statute without the aid of a court of equity. Francis v. White, 160 Ala. 523, 49 So. 334; s.c., 142 Ala. 590, 39 So. 174; Lord v. Blue, 200 Ala. 521, 76 So. 463; Whiteman v. Taber, 203 Ala 496, 83 So. 595; Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Snow v. Montesano Land Co., 206 Ala. 311 89 So. 719.
The excuse for the failure of tender of the purchase money, interest, and other lawful charges, as provided by statute (Code 1907, § 5749), or the facts showing the inability of complainant to ascertain the amount necessary to be paid or tendered, has been the subject of consideration in comparatively recent cases. In Johnson v. Davis, 180 Ala. 143, 60 So. 799, the statement furnished failed to give credit for the personal property embraced in the mortgage that was of substantial worth; in Francis v. White, supra, the averments of the bill were that actual performance "on the debtor's part was prevented or waived by the party to whom performance was due"; in Lord v. Blue, supra, the land was sold in parcels and the mortgagee purchased one of the parcels; in Wootten v. Vaughn, 202 Ala. 684, 81 So. 660, the right was that of a junior mortgagee who had purchased at foreclosure sale by the senior mortgagee, and an accounting for rents and waste was sought; in Randolph v. Bradford, 204 Ala. 378, 86 So. 39, the suit was for equitable redemption; in Baker v. Burdeshaw, 132 Ala. 166, 31 So. 497, there was refusal to inform complainant of the amount due on account of taxes and permanent improvements, and complainant was averred to be ignorant and to have had no means of ascertaining the same; in Slaughter v. Webb, supra, the full and correct amount necessary to redeem was averred not to be ascertainable.
In Snow v. Montesano Land Co., 206 Ala. 310, 89 So 719, the purchaser had conveyed the land in several parcels, and it was necessary to ascertain the several and separate amounts required to effectuate redemption; the purchaser having put it beyond redemptioner's power to redeem as provided by statute. The several sums necessary to redemption as provided by statute are discussed at that case. In Toney v. Chenault, 204 Ala. 329, 85 So. 742, the purchaser at foreclosure sale refused to allow redemption under the statute, unless the portion of the land asserted to stand in the names of third persons was omitted; the assignee attempted to exercise the right; held, relieved of the duty of demanding statement,...
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