Prichard v. Sweeney

• Decision Date: 09 April 1896
• Citation: 109 Ala. 651,19 So. 730
• Parties: PRICHARD v. SWEENEY.
• Court: Alabama Supreme Court

19 So. 730

109 Ala. 651

PRICHARD v. SWEENEY.

Supreme Court of Alabama

April 9, 1896

Appeal from circuit court, Mobile county; William S. Anderson Judge.

Action by Cleveland Prichard against Patrick Sweeney. Plaintiff submitted to a nonsuit, and appeals. Affirmed.

This action was instituted to recover a certain sum of money which was alleged to have been paid to the defendant, under protest, for the purpose of redeeming land which the defendant had purchased at a sale under a decree of the chancery court against the plaintiff. The complaint contained a special count setting out the facts upon which the plaintiff based his right of recovery, and the common counts,-seeking to recover an amount due by account; on account stated; for money paid by plaintiff for the defendant, at his request; and for money had and received by the defendant to the use of the plaintiff. The defendant interposed demurrers to the first count of the complaint some of which demurrers were sustained. Upon the court's sustaining objections to the evidence offered by the plaintiff tending to show the facts upon which he relied for recovery, the plaintiff took a nonsuit, with a bill of exceptions. The facts offered to be proved by the plaintiff-to the exclusion of the evidence tending to prove which the plaintiff duly excepted-are sufficiently stated in the opinion. Upon the rendition of judgment in favor of the defendant, the plaintiff appeals, and assigns as error the rulings of the court upon the pleadings and upon the evidence, to each of which rulings the plaintiff separately excepted.

Fredk G. Bromberg, for appellant.

R. P. Deshon, for appellee.

BRICKELL C.J.

Originally a plaintiff voluntarily taking a nonsuit could not maintain a writ of error or appeal, however erroneous may have been the rulings of the court, or the proceedings prior to the nonsuit; and this for the reason that a final judgment only would support a writ of error or an appeal. The present statute authorizes a plaintiff submitting to a nonsuit, in consequence of adverse rulings of the court, to revise such rulings on appeal, if to them exceptions be reserved. Code, § 2759. The uniform construction of the statute has been that it relates exclusively to rulings of the court which can properly be introduced into the record only by a bill of exceptions. The rulings of the court on the pleadings, which necessarily form part of the record, are not within the purview of the statute. Palmer v. Bice, 28 Ala. 430; 3 Brick. Dig. 678, § 5. Of consequence, the assignments of error drawing in question the rulings of the court on the demurrer to the complaint are not now open for review.

2. The demurrer was not directed to the entire complaint, but only to the special count. The common counts remained, and on them the trial was had. The evidence which was rejected,-and the rejection of which forms the matter of the bill of exceptions,-if- "if relevant, had a tendency to support only the count for money had and received. The count may be supported by evidence that the defendant has money which, ex æquo et bono, belongs to the plaintiff; or, in view of the tendencies of the rejected evidence, to state the proposition less generally, that the defendant has obtained money from the plaintiff "by duress, extortion, imposition, or taking any undue advantage of his situation." 2 Greenl. Ev. § 121.

3. A summary of the facts the rejected evidence was intended to show is that on the 1st day of September, 1890, at a sale under a decree of the court of chancery foreclosing a mortgage on lands executed by the plaintiff, the defendant became the purchaser, received a conveyance, and entered into possession. During his possession he made permanent improvements, a statement of the value of which he had, prior to 31st August, 1892, rendered to the plaintiff, or rather had, by his counsel, been furnished to the counsel of plaintiff on request. On the 31st August, 1892, the plaintiff tendered to the defendant, for the purposes of the statutory redemption of the lands, the purchase money he had paid, with 10 per cent. per annum thereon, and all other lawful charges, accompanied with a notice in writing that he deemed the value of the improvements as claimed by the defendant excessive, that payment of it was made under protest, and that he demanded an arbitration to ascertain the value of the improvements, and nominated a particular person as a referee on his part. The defendant postponed receiving the money tendered on that day, saying he had made other improvements since the statement furnished the plaintiff, and that on the next day he would be in the city of Mobile, and attend to the matter of redemption. On the next day a statement in writing of the value of the improvements as claimed by the defendant was furnished the counsel for the plaintiff, including also a statement of the other sums necessary to a redemption, accompanied with the statement that the defendant would not consider any offer to redeem unless a tender was made according to law. Thereafter the plaintiff paid the sum demanded, and the defendant executed to him a conveyance of the lands. The evidence further tended to show that the sum demanded and received as the value of the improvements was greatly in excess of their reasonable value.

4. A party proposing to redeem, under the statute, lands which have been sold under execution, or under a decree of the court of chancery, is required to pay or tender payment not only of the purchase money, with 10 per cent. per annum thereon, but all other lawful charges, and of these charges is the value of all permanent improvements put on the premises by the party in possession after the title was acquired by the preceding sale. If the parties cannot agree on the value of the improvements, "each must appoint a referee to ascertain the value thereof, who, if they cannot agree, must appoint an umpire, and they must make their award within three days, which is final between the parties." Code, § 1889. If the party proposing to redeem declines to nominate a referee, he must pay the value put upon the improvements by the person in possession. If the latter refuse, after the appointment by the former, to make an appointment of a referee, he forfeits all claim to compensation for such improvements. Code,§ 1890. The right to redeem is statutory, and the party proposing to exercise it must pursue the statute. There are no equivalents or substitutes for its requirements. The value of permanent improvements made during the time the estate is burdened with the right of redemption must be paid by the parties proposing to redeem. The purpose of the statute in this respect cannot be mistaken. It is intended to prevent litigation as to the value of the improvements, delaying redemption, or incumbering the title of the purchaser with inchoate or imperfect claims to redeem, until the value of the improvements may be ascertained and settled by litigation in the courts. Posey v. Pressley, 60 Ala. 243; Cramer v. Watson, 73 Ala. 127. The purchaser, or whoever may have succeeded to the possession, has the more accurate information of the character and value of the improvements, if any have been made; and it is his duty, on request, to furnish the party offering to redeem information of the character and value of such improvements. When the information is given, if the party proposing to redeem is unwilling to pay the value as claimed, he is entitled to demand an arbitration to ascertain the value; and of the demand he must give notice, and nominate or appoint a referee on his part. If he does not make the demand, and give the notice and appoint a referee, he must pay the claimed value of the improvements. When the demand is made, the notice given, and the referee nominated or appointed, if the party claiming the value of the improvements refuses to appoint...