Pridgen v. Shadgett

• Decision Date: 18 March 1943
• Docket Number: 4 Div. 268.
• Citation: 244 Ala. 167,12 So.2d 395
• Parties: PRIDGEN v. SHADGETT.
• Court: Alabama Supreme Court

12 So.2d 395

244 Ala. 167

PRIDGEN v. SHADGETT.

4 Div. 268.

Supreme Court of Alabama

March 18, 1943

N. Frank Pridgen, of Dothan, for appellant.

Tompkins & Ramsey, T. E. Buntin, and J. R. Ramsey, all of Dothan for appellee.

LIVINGSTON Justice.

The bill of complaint in this cause was filed by Mrs. Lena D Pridgen, as executrix of the last will and testament of M. F Pridgen, deceased, against George D. Shadgett and Mrs. Josie Maddox, and seeks a sale for division of a certain city lot and brick storehouse thereon, located in the city of Dothan Alabama. Complainant acquired an undivided one-half interest in and to said lot and storehouse on April 21, 1942, by and through the foreclosure of a mortgage conveying said property, executed and delivered to her by George D. Shadgett and wife Helen Shadgett. The present bill was filed the day following the day on which the foreclosure deed was executed and delivered.

By amendment George D. Shadgett was stricken as a party respondent; and he died pending the litigation. Helen Shadgett, his wife, filed her petition to intervene in the cause, and to exercise her statutory right of redemption, after having received from complainant, or her attorney, a statement of the amounts necessary to redeem, which statement, admittedly, contained exaggerated or illegal demands.

By agreement of the parties only two questions are here presented for review. First, what fee, if any, should be allowed complainant's attorney for foreclosing said mortgage? Second, what fee, if any, should be allowed complainant's attorney for filing this bill in equity to sell said real estate for division among the joint owners thereof?

We will answer the second question first. A purchaser of an undivided interest in real estate at a mortgage foreclosure sale may file a bill in equity to sell said real estate for division among joint owners while the statutory right of redemption is still outstanding. Lyon v. Powell, 78 Ala. 351; Hines v. Chicago Bldg. & Mfg. Co., 115 Ala. 637, 22 So. 160; Jordan v. Walker, 201 Ala. 248, 77 So. 838.

But such purchaser's right to a sale of the real estate may be defeated by a compliance with our statutory requirements relative to the statutory right of redemption before a sale is made. The right to a sale for division under these circumstances is subordinate to the paramount right to redeem.

The right to redeem is admitted, and so far as appellant and appellee are concerned, the sale for division is defeated. Under the admitted facts of this case, appellant is not entitled to a fee for filing the bill to sell the real estate for division. But we quote from appellee's brief as follows: "Appellee believes that, in the circumstances shown by this case, appellant's attorney is not entitled to any fee (we interpolate, for filing the bill to sell for division), but that question is pretermitted, for the reason that no cross-appeal was taken and no assignments of error made, and appellees are willing to abide by the decree of the lower court." Therefore, the decree allowing complainant's attorney a fee of one hundred dollars for filing the bill to sell for division is affirmed.

Answering the first question.-Parties have the right to try their causes upon such issues as they choose, and judgment must be pronounced in accordance with the issue so made between them.

Glass v. Meyer, Son & Co., 124 Ala. 332, 26 So. 890; Alabama Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311.

The lower court allowed complainant's attorney a fee of one hundred dollars for foreclosing...