Powers v. Andrews

• Decision Date: 22 May 1888
• Citation: 84 Ala. 289,4 So. 263
• Parties: POWERS ET AL. v. ANDREWS.
• Court: Alabama Supreme Court

4 So. 263

84 Ala. 289

POWERS ET AL. v. ANDREWS.

Supreme Court of Alabama

May 22, 1888

Appeal from chancery court, Lauderdale county; THOMAS COBBS, Judge.

This was a bill filed by the appellee, Robert Andrews, and sought to redeem the land in controversy. The ground upon which relief is asked by the bill is that the complainant, as trustee, being an assignee of the equity of redemption, was entitled to exercise the statutory right of redemption as given under the provisions of the Code governing the redemption of real estate. The terms of the statute are sufficiently set out in the opinion. The defendants interposed a demurrer to the bill on the ground of the want of equity. The chancellor overruled the demurrer, and decreed that the complainant was entitled to redeem the land. This ruling of the chancellor is now assigned as error in this court.

Simpson & Jones, for appellants.

Emmett O'Neal, for appellee.

SOMERVILLE J.

The question of principal importance is the right of the appellee, Andrews, who was complainant in the court below, to exercise the privilege of redeeming the land in controversy, consisting of a lot in the town of Florence. The land, being owned by McAlister and Jackson, was, on March 4, 1882, mortgaged to Mrs. Irvine. Subsequently, on February 2, 1885, the mortgagors, becoming insolvent, made an assignment for the benefit of their creditors, by which they conveyed certain property, including all their right, title, and interest in this mortgaged lot, to Robert Andrews, the appellee, who was named in the assignment as trustee. The mortgage of Mrs Irvine was duly foreclosed under a power of sale contained in the instrument; and on the 9th of August, 1886, at the sale Mrs. Powers, one of the appellants, became the purchaser. Upon this bill being filed by the trustee on April 4, 1887, the chancellor held that, being an assignee of the equity of redemption, he was entitled to exercise the statutory right of redemption, under the provisions of the Code regulating the redemption of real estate sold under execution, decree, mortgage, or deed of trust. Code 1886, §§ 1879, 1891; Code 1876,§§ 2877, 2889. In Bailey v. Timberlake, 74 Ala. 221, (decided in 1883,) it was held, apparently without consideration at any length, that a junior mortgagee who acquired his interest in the land before the sale by the prior mortgagee was entitled to redeem from a purchaser at a sale made under the power contained in such prior mortgage. No reason was given for this conclusion, and we are now asked to reconsider it, upon the ground that the decision is not only inconsistent with the view taken by this court in other cases of the statutory right of redemption, but it is by strong implication repugnant to the terms of the statute itself. It has often been said by this court that this right of redemption under the statute is purely the creature of legislation, and has no existence without it. It is essentially different from the equity of redemption recognized by the common law. That right is property capable of sale by transfer or under execution or decree of a chancery court. It can only be exercised before a foreclosure of the mortgage under a decree of a court of equity, or before a sale under a power in the mortgage. It cannot be exercised after a valid foreclosure, either under a power of sale or under a decree, unless in the case of voidable sales, where the mortgagee has acted as both seller and purchaser without the consent of the mortgagor, so as to justify the court in setting aside the sale for constructive fraud. Cramer v. Watson, 73 Ala. 127. The statutory right of redemption, on the contrary, comes into existence only after the equity of redemption proper has been cut off by sale or foreclosure. Until then, it would seem, it cannot spring into life. And we have uniformly decided that this privilege is neither property, nor the right of property; that it is not subject to levy or sale as such under execution; and that it is a right or privilege personal to the debtor. Parmer v. Parmer, 74 Ala. 285; Otis v. McMillan, 70 Ala. 46, 62; Childress v. Monette, 54 Ala. 317; Mewburn v. Bass, 82 Ala. 626, 2 South. Rep. 520; Cooper v. Hornsby, 71 Ala. 62; Seals v. Pheiffer, 77 Ala. 278. It necessarily follows from these principles, which are now too well settled to be disturbed, that the statutory right of redemption can only be exercised by the persons named in the statute, in the mode, within the time, and upon the conditions therein prescribed, although in construing the statute it must be interpreted liberally in favor of the debtor, to prevent the oppressive sacrifice of his estate. The statute itself provides, in detail and very fully, for the mode in which the right may be exercised, and the circumstances which authorize it, and the remedy for enforcing it. The right is conferred only on the following-named classes of persons: (1) The debtor himself; (2) any judgment creditor of the debtor whose judgment has not been obtained by fraud, collusion, or confession; (3) the executor or administrator of the debtor; (4) the heirs or devisees of the debtor; (5) the executor or administrator of any judgment creditor of the debtor; (6) a child who was the grantee of his parent, who owned the land sold. Code 1886, §§ 1879, 1883, 1887, 1891. It will be observed that there is no mention among these, in general terms of the assignee, mortgagee, or vendee of the debtor. There is singled out but one particular class of assignees or grantees. These are the children of the owner of the land to whom he may have conveyed it. The only allusion to a mortgagee anywhere in the statute is found in section 1887, which declares that a mortgagee, or beneficiary in a deed of trust, shall be considered as "a creditor," within the meaning of the statute, when he has become the purchaser of the debtor's property at a sale under his mortgage or deed of trust, and then only to the extent to which his mortgage remains unsatisfied; thus placing him upon the same basis with a plaintiff in execution who has become a purchaser under this judgment. Id. § 1887. The purpose of this provision is manifestly to enable him to resist a redemption from himself to the extent authorized in section 1884, and to confer on him the right to recover the premises by an action of unlawful detainer, which is conferred on creditors in section 1886. Id. §§ 1884, 1886. We repeat that it is nowhere said that a mortgagee, vendee, or other assignee of the debtor may 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. If we look for the legislative intent in the words which the legislature has embodied in the statute,-the only safe rule of...