Jones v. Kelly

• Decision Date: 26 June 1919
• Docket Number: 2 Div. 693
• Citation: 203 Ala. 170,82 So. 420
• Parties: JONES et al. v. KELLY.
• Court: Alabama Supreme Court

82 So. 420

203 Ala. 170

JONES et al. v. KELLY.

2 Div. 693

Supreme Court of Alabama

June 26, 1919

Appeal from Circuit Court, Hale County; B.M. Miller, Judge.

Bill by I.N. Jones and another against Pat Kelly, to quiet title to land. From the decree rendered, plaintiffs appeal. Affirmed.

The following is the deed from Lyles to Ruffin:

Know all men by these presents that, whereas, the undersigned Andrew Lyles is justly indebted to Tom Ruffin in the sum of eight hundred and eighty and 50/100 dollars ($880.50), which amount is due as unpaid purchase money for the lands hereinafter described, and which said amount is secured for the said Tom Ruffin by a certain mortgage executed by the said Andrew Lyles and his wife, Rachael Lyles, to the said Tom Ruffin bearing date Jan. 25, 1906, and which is recorded in the Mortgage records of Hale County, Alabama, in Book 68 at page 606; and whereas, the law day of said mortgage is long past due and the said Andrew Lyles is unable to pay the amount due as aforesaid, and is desirous of avoiding the annoyance and mortification and expense of a foreclosure of said mortgage by said Ruffin, and in order to thus avoid foreclosure of said mortgage by said Ruffin, and in order to thus avoid foreclosure is willing to pay $11.50 for the making and executing of this conveyance to said Tom Ruffin Now therefore for and in consideration of the premises and in lieu of a foreclosure of said mortgage, and for the further consideration of the sum of one dollar in hand paid to the said Andrew Lyles by the said Tom Ruffin, the receipt whereof is hereby acknowledged, the said Andrew Lyles and his wife Rachael Lyles, do hereby grant, bargain, sell, convey unto the said Tom Ruffin the following described lands in Hale county, Alabama and which are the identical lands conveyed in the mortgage above mentioned by the said Lyles to Tom Ruffin to wit: The south half of the northeast quarter of section 17, township 19, range 4 east. To have and to hold the above-described land unto the said Tom Ruffin, his heirs and assigns forever, together with all and singular the tenements, hereditaments and appurtenances thereunto appertaining or belonging, but with the following conditions and reservations that the said Andrew Lyles shall have for the period of two years from this date the same right of redemption in said lands as if the same had been sold on this date at a foreclosure sale under the power contained in said mortgage and the said Tom Ruffin had bought the same in at the said sale for the sum of eight hundred and ninety-two dollars which is the amount now due on said mortgage as aforesaid, together with the eleven dollars and fifty cents for making and executing this conveyance which has been paid by said Ruffin for said Lyles. That is to say that said Andrew Lyles may redeem said lands within two years from the date hereof by paying the said amount of eight hundred and ninety-two dollars, together with interest and all lawful charges as is provided for in chapter 133, Code of Alabama 1907, covering the redemption of real estate after the foreclosure of a mortgage thereon.

Witness our hand and seal this the 21st day of February, 1916.

(Properly signed, witnessed, and acknowledged.)

Thomas E. Knight, of Greensboro, for appellants.

Edward de Graffenried, of Tuscaloosa, for appellee.

SAYRE J.

On a day in February, 1916, Andrew Lyles, his wife joining, executed and delivered to Tom Ruffin the instrument of conveyance which is shown in the report of the case. Complainants, appellants, now claim the land therein described by deed from Ruffin of date January 30, 1918. Defendant, appellee, claims the right to redeem under a conveyance from Lyles and wife dated February 22, 1918. This last conveyance recites that:

"It is true intent and meaning of this conveyance to convey to said Pat Kelly

all our rights, title and interests in the said lands, and especially our statutory rights of redemption therein."

July 23, 1918, appellants filed their bill against appellee to quiet their title. Appellee made his answer a cross-bill seeking to redeem under the terms of the instrument stated first above, averring that on February 22, 1918, he had made a proper tender to appellants as grantees and assignees of Ruffin under said instrument.

In the brief for appellants it is urged that the amendment of the redemption statute--which appears for the first time in section...