Randolph v. Bradford

• Decision Date: 17 June 1920
• Docket Number: 8 Div. 217
• Citation: 204 Ala. 378,86 So. 39
• Parties: RANDOLPH et al. v. BRADFORD et al.
• Court: Alabama Supreme Court

86 So. 39

204 Ala. 378

RANDOLPH et al. v. BRADFORD et al.

8 Div. 217

Supreme Court of Alabama

June 17, 1920

Appeal from Circuit Court, Lawrence County; Robert C. Brickell Judge.

Bill by D.C. Randolph and others against J.M. Bradford and L.J. Byars for equitable redemption or statutory redemption, to disaffirm an attempted sale under mortgage, and to correct certain descriptions. From a decree sustaining demurrers to the bill, complainants appeal. Affirmed.

Sample & Kilpatrick, of Cullman, for appellants.

G.O Chenault, of Albany, for appellees.

THOMAS J.

The bill was filed in the alternative to enforce the equitable right of redemption or to disaffirm an irregular sale under a mortgage and redeem. Wootten v. Vaughn, 81 So. 661.

A complainant enforcing an equity of redemption, rather than the statutory right, is not required to tender the amount due the mortgagee, or to make the tender good by payment of the amount due into court. It is only necessary to aver his readiness, willingness, and offer to pay such amount as the court finds just and proper. Hale v. Kinnaird, 200 Ala. 596, 76 So. 954, 958; Whiteman v. Taber, 83 So. 595; McGuire v. Van Pelt, 55 Ala. 344; Thomas v. Jones, 84 Ala. 302, 4 So. 270; Murphree v. Summerlin, 114 Ala. 54, 57, 21 So. 470; McCalley v. Otey, 90 Ala. 302, 8 So. 157; Id., 99 Ala. 584, 12 So. 406, 42 Am.St.Rep. 87. On the other hand, to effectuate statutory redemption of real estate, the redemptioner must not only show tender of the amount required by statute, or a good excuse for the failure (Baker v. Burdeshaw, 132 Ala. 166, 31 So. 497), but must accompany his bill to redeem by the payment of the money into court and offer to abide by the decree of the court (Seals v. Rogers, 172 Ala. 651, 653, 55 So. 417; Wootten v. Vaughn, supra; Murphree v. Summerlin, supra). Of necessity, the statutory right of redemption is nonexistent until the equity of redemption is extinguished by an effectual foreclosure. Baker, Lyons & Co. v. Eliasberg, etc., Co., 201 Ala. 591, 79 So. 13; Dinkins v. Latham, 202 Ala. 101, 79 So. 493.

The authorities are to the effect that a sale under the terms of a mortgage before maturity of the debt is ineffectual to foreclose the equity of redemption; so is a sale without giving the required notice. In such case, the mortgagor, if an adult under no disability, may exercise his equity of redemption (Keith v. McLaughlin, 105 Ala. 339, 343, 16 So. 886; Ford v. Lewis, 146 Ala. 190, 41 So. 144; Gernert v. Limbach, 163 Ala. 413, 50 So. 903) within ten years after the ineffectual foreclosure (Elrod v. Smith, 130 Ala. 212, 215, 30 So. 420; Sanders v. Askew, 79 Ala. 433, 435; Wood v. Lake, 62 Ala. 489), and within the time prescribed by law minors and others under a disability may exercise the right (Dinkins v. Latham, supra).

The instant bill avers an independent obligation on the part of the mortgagee, which was incorporated in his deed to the mortgagor, to clear the land of an indicated mortgage. This condition was:

"It is understood and agreed that there is a mortgage on the above lands, in with other lands, for $800, and that said Byars agrees to see that the above land is released from said mortgage when the last payment is made, and to warrant the title against said mortgage to D.C. Randolph."

It is further averred that said deed containing this condition was of record in the probate office on the date respondent Bradford acquired said note and mortgage by the purchase and transfer of the same. Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124, 126. The several instruments--the deed containing the condition and the mortgage and notes evidencing the purchase and the securing of the purchase price--are to be construed with reference to each other. Mobile County v. Linch, 198 Ala. 57, 73 So. 423, 425; Dadeville Oil Mill v. Hicks, 184 Ala. 367, 371, 63 So. 970; Satterfield v. Fid. Mut. Life Ins. Co., 171 Ala. 429, 434, 55 So. 200; Sewall v. Henry, 9 Ala. 24, 30; Whitehurst v. Boyd, 8 Ala. 375, 381; Holman v. Crane, 16 Ala. 570, 578; Prater v. Darby, 24 Ala. 496; Pierce v. Tidwell, 81 Ala. 299, 304, 2 So. 15.

The mortgagee or his assignee had no right of foreclosure until the notes matured and the condition was fulfilled as to the $800 mortgage embracing--with other lands--the land in question. The mortgagee must discharge his contract obligation and make good his warranty that the premises might be free from all incumbrance--the $800 incumbrance in question. The bill does not aver that respondent had failed to discharge said incumbrance, or that only one of the purchase-money notes had matured and was paid, when the attempted foreclosure was had. With such averments a premature foreclosure would be shown, ineffectual to cut off the equity of redemption, and no tender of the amount due on the mortgage would have been required to be averred and made good. The bill cannot be sustained on such grounds, under its insufficient averments.

The amended bill, after averring the condition of incumbrance of the $800 mortgage, which was to be cleared by the mortgagee and vendor, does not aver in specific terms that the mortgagee failed as to clearing the land of the incumbrance, but avers that Bradford, the assignee of the mortgage, claimed to have acquired complainant's note and mortgage from Byars, and pretended to advertise and sell the lands under the power given in the mortgage, and claimed to have purchased at said sale, demanding possession of the land as purchaser, and it was surrendered; and it is charged "that said land was not advertised as required, and in accordance with the terms and provisions of said mortgage that said Bradford took possession of said land on or about December 20, 1917, and has been in actual possession" of the same subsequent to said date, having cultivated it, collecting rents therefrom, and cutting and removing large quantities of timber therefrom. Thus is sought to be charged the failure of due notice, and an ineffectual foreclosure to cut off the equity of redemption. Under this phase of the bill, if sufficiently averred, tender of the amount due need not have been made before the bill was filed, nor was a deposit required of such amount as is due on the mortgage, with interest and other lawful charges, to be deposited with the register of the court when the bill was filed. Wootten v. Vaughn, supra.

Were complainant proceeding under the statutory right of redemption, and relief awarded under the general prayer, sufficient reason is averred to relieve him of tender or of paying the amount due into court. Whiteman v. Taber, supra; Johnson v. Davis, 180 Ala. 143, 60 So. 799; Dozier v. Farrior, 187 Ala. 181, 65 So. 364. The demand for a statement of the amount due, it is averred, was denied by respondent's demanding a sum wholly disproportionate to the amount of the mortgage debt, interest, and statutory charges, and by his refusal to accept the amount of $761, averred to be due on September 7, 1918.

The bill as last amended prayed that the deed executed by the original vendor, J.L. Byars, to complainant, be reformed so as to correctly describe the designated portion of the lands conveyed, and that the said J.L. Byars "be...