Lewis v. McBride

• Court: Alabama Supreme Court
• Writing for the Court: SIMPSON, J.
• Citation: Lewis v. McBride, 176 Ala. 134, 57 So. 705 (Ala. 1912)
• Decision Date: 08 February 1912
• Parties: LEWIS v. MCBRIDE ET AL.

57 So. 705

176 Ala. 134

LEWIS v. MCBRIDE ET AL.

Supreme Court of Alabama

February 8, 1912

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

Suit by Mae Lewis against J. J. McBride and another. From a decree for defendants, plaintiff appeals. Affirmed.

Sayre J., dissenting in part.

R. B Smythe and John V. Smith, for appellant.

Powell & Hamilton and Lane & Lane, for appellees.

SIMPSON J.

This is a bill by the appellant, seeking to redeem land that had been sold by virtue of a power of sale in a mortgage. The mortgage was made by George Lewis to Powell, Hamilton & Lane. The respondent J. J. McBride purchased at the mortgage sale and afterward sold the property to the other respondent T. B. Brown. After the sale under the mortgage, said George Lewis executed a paper in words as follows, to wit: "I * * * grant, bargain, sell, transfer, set over and assign, and do by these presents, grant, bargain, sell, convey, transfer, set over and assign to Mae Lewis all of my right, title and interest to my equity of redemption in and to a certain mortgage executed by George Lewis," etc.; going on to describe the land covered by the mortgage.

The original bill alleges that the sale by McBride to Brown was on credit, and that the legal title remained in McBride, and the amendment to the bill sets out the terms of the contract of sale, and reiterates the fact that the legal title remained in McBride. Brown, the purchaser, is in possession of the land. The original bill showed, by exhibit, a written demand on McBride, 10 days before the filing of the bill, for a statement of the debt and lawful charges. No tender of any money is alleged; nor is any money deposited in court.

After demurrer to the original bill had been sustained, the complainant filed an amendment, alleging that, after the decree sustaining the demurrer, the complainant had made a written demand on said Brown for a statement of the debt and lawful charges; that 10 days had elapsed since said demand; and that said Brown had failed to furnish the statement, and had refused to furnish the same, "saying that it was none of his business to do so, and that this was a matter for J. J. McBride to attend to." Still the complainant does not allege any tender of any money; nor does she deposit any money in court.

The first question which arises is whether the complainant is entitled to redeem at all. It is true that section 5746...