Morrison v. Formby

• Decision Date: 17 December 1914
• Docket Number: 618
• Citation: 191 Ala. 104,67 So. 668
• Parties: MORRISON et al. v. FORMBY.
• Court: Alabama Supreme Court

67 So. 668

191 Ala. 104

MORRISON et al. v. FORMBY.

No. 618

Supreme Court of Alabama

December 17, 1914

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

Bill by R.L. Formby against G.F. Morrison and others to redeem lands sold under a deed of trust. Decree for complainant, and respondents appeal. Corrected and affirmed.

White &amp Lumpkin, of Center, and Goodhue & Brindley, of Gadsden, for appellants.

T. Ben Kerr, of Piedmont, and Knox, Acker, Dixon & Sterne, of Anniston, for appellee.

McCLELLAN J.

On September 24, 1906, R.L. Formby and wife executed to A.O Williams, as trustee, a deed of trust on certain real estate to secure the payment of an indebtedness to G.F. Morrison. On March 10, 1909, the trustee sold the land in execution of the trust for the satisfaction of the indebtedness it was given to secure. At the sale under the power G.F. Morrison became the purchaser of the land. On October 4, 1909, Morrison made with respondents Maxey, Wood, Ellenburg, and Floyd executory contracts of sale of separate parts of the land so bought at the foreclosure sale, giving them bonds for the conveyance of appropriate titles when the purhcase money, represented by notes, was fully paid. Having in contemplation redemption of the land under the statutes to that end, Formby on January 24, 1911, through her attorney and solicitor, Mr. Kerr, made written demand upon Morrison for the statement of debt and lawful charges as stipulated in Code, § 5748. That section, before its amendment by the act approved April 13, 1911 (General Acts 1911, p. 391), reads:

"5748. Written Demand for Charges; May File Bill.--Any one desiring and entitled to redeem may make written demand of the purchaser or his vendee for a statement in writing of the debt and all lawful charges claimed by him, and such purchaser or vendee shall, within ten days after such written demand, furnish such person making the demand with a written itemized statement of the debt and all lawful charges claimed by him, and failing so to do, shall forfeit all claim or right to compensation for improvements, and the party so entitled to redeem may, on the expiration of the ten days, file his bill in equity without a tender to enforce his rights hereunder."

This demand upon Morrison was not complied with by him. There was no demand made upon Maxey, Wood, Ellenburg, and Floyd, the purchasers from Morrison under the executory contracts.

It is insisted that since, as appears, Formby knew of these dispositions of several parts of the land to Maxey, Wood, Ellenburg, and Floyd, demands should, under the statute, have been made upon each for and with reference to the tract he had contracted to buy, and so in order to lay the condition upon which the statute visits its forfeiture of the "right to compensation for improvements." The chancellor concluded against this contention, and our opinion accords with his.

Redemption of lands under our statutes to that end cannot be exercised otherwise than that of the whole of the property bought at the sale. The process contemplated and required by the statutes makes an indivisible entity of the act of redemption. Section 5748, set out before, does not appear to have contemplated a case where there has been a sale or sales of part only of the land bought by the purchaser at a sale under execution, under mortgage or deed of trust, or under decree of a court of equity. However that is, the office and effect of statutory redemption is to reinvest title in the redemptioner, to divesting it out of the person in whom it is vested. Such is also the clear purport of this provision of Code, § 5757:

"Any person offering to redeem must pay to the person in possession the value of all permanent improvements made by him after he acquired title" (italics supplied).

The established foundation, on redemption, for the right to compensation for permanent improvements is title, meaning necessarily the repository of the legal title. Such is the principle underlying the analogy present in rulings made in the administration of section 5749. Lehman-Durr v Collins, 69 Ala. 127,...