Owen v. Kilpatrick

• Decision Date: 27 July 1892
• Citation: 96 Ala. 421,11 So. 476
• Parties: OWEN ET AL. v. KILPATRICK ET AL.
• Court: Alabama Supreme Court

11 So. 476

96 Ala. 421

OWEN ET AL. v. KILPATRICK ET AL.

Supreme Court of Alabama

July 27, 1892

Appeal from chancery court, Jackson county; THOMAS COBBS Chancellor.

Bill by James and Will Owen against Frank J. Kilpatrick and others to redeem from a sale under a vendor's lien. From a decree sustaining a demurrer to the bill, complainants appeal. Affirmed.

On September 26, 1889, W. K. Spiller sold a house and lot in the town of Bridgeport, Ala., to F. J. Kilpatrick, and executed to him a deed, reciting the payment in full of the purchase money; but a part of the purchase money was in fact unpaid. The deferred payment of the purchase money not being paid the said Spiller filed his bill in the chancery court to enforce his vendor's lien, and on the 1st day of April 1890, the said court rendered a decree in favor of said Spiller, and the land was sold on June 5, 1890, at which sale Ross & Caffey became the purchasers. There was no one made a party defendant to this bill filed by Spiller except F. J Kilpatrick. On the 31st day of March, 1890, (the day before the decree was rendered in the suit to enforce the vendor's lien,) James Owen and Will Owen took a mortgage from F. J. Kilpatrick and wife to the same property to secure a debt of $4,100, but failed to redeem before foreclosure of the vendor's lien by sale under the decree in the chancery court, on June 5, 1890. On September 9, 1891, one R. L. Watkins obtained a judgment by default against F. J. Kilpatrick, and as such judgment creditor redeemed the land in controversy from Ross & Caffey on October 1, 1891. The present bill is filed by James and Will Owen as mortgagees, who pray that they be allowed to redeem the land in controversy from the said Watkins. All the other persons named are made parties defendant to the bill. The defendant R. L. Watkins filed a demurrer to the bill, and assigned the following grounds: (1) That the said bill avers no facts which entitle the complaints to redeem from R. L. Watkins; (2) that the allegations of the bill show that the complainants are not entitled to redeem from this defendant; (3) that the allegations of the bill show that the mortgage under which the complainants seek to redeem was executed during the pendency of the foreclosure suit by W. K. Spiller, and that the decree of foreclosure was effectual to cut off the complainants' right to redeem, notwithstanding they were not made parties to such foreclosure suit; (4) that it appears from the allegations of the bill that the complainants were incumbrances pendente lite, and are clearly bound by the decree of foreclosure through which this defendant claims titles as a redeeming judgment creditor; (5) that from the allegations of the bill it is shown that this defendant is a judgment creditor, under such facts as that complainants are not entitled to redeem from this defendant; (6) that there is no provision of the law for the redemption of mortgages from a judgment creditor who has redeemed from the purchaser at the sale under a decree of the chancellor as set forth in the present bill; (7) the same ground as the sixth; (8) the bill does not aver that the complainants have made any tender of the amount which would entitle them to redeem from the defendants.

J. E. Brown, for appellants.

Martin & Bouldin, for appellees.

WALKER J.

Under the redemption statute, as it stood prior to February 27 1889, a mortgagee, vendee, or other assignee of the debtor had no right to redeem from any one after a sale of the land under execution, or by any of the other modes of sale specified, except in the single instance of a child of the debtor to whom he had conveyed the land. Powers v. Andrews, 84 Ala. 289, 4 South. Rep. 263; Code, § 1888. By the act approved on the day above mentioned the right of redemption, as an incident to the ownership of or title to the property to be redeemed, was extended to the debtor's vendee, and his junior mortgagee or assignee of the equity of redemption. Acts Ala. 1888-89, p. 764. The result of this statute is that the sacrifice of real estate for the payment of debts may be prevented, not only by the debtor himself, or by his child to whom he had conveyed, but also by certain other classes of persons, who, by transfer or conveyance from the debtor, have succeeded to his position as owner. Under the provisions referred to, the right of the classes of persons therein mentioned, besides the debtor himself, to redeem, is made to rest upon the fact that there is vested in them, by operation of a transfer or conveyance from the debtor, a certain title or property interest in the land, absolute or conditional. The statute further confers the right to redeem upon other persons who occupy no relation of ownership to the property to be redeemed. All judgment creditors of the debtor, who, without fraud or collusion, had obtained such judgment before the sale of the land or within two years thereafter, except by confession of the debtor, may redeem the land from the purchaser, or any one claiming under him. Code, § 1883. The right to redeem which is conferred upon the class of persons...