Smith v. Jack

• Decision Date: 19 April 1923
• Docket Number: 2 Div. 813.
• Citation: 96 So. 419,209 Ala. 520
• Parties: SMITH v. JACK ET AL.
• Court: Alabama Supreme Court

96 So. 419

209 Ala. 520

SMITH v. JACK ET AL.

2 Div. 813.

Supreme Court of Alabama

April 19, 1923

Rehearing Denied May 24, 1923.

Appeal from Circuit Court, Sumter County; R.I. Jones, Judge.

Bill of A. M. Jack and Guy Jack, Jr., against M. R. Smith for statutory redemption. From a decree for complainants respondent appeals. Affirmed in part, reversed in part, and remanded.

Thomas F. Seale, of Livingston, and Jones, Jones & Van de Graaff, of Tuscaloosa, for appellant.

Patton & Patton, of Carrollton, for appellees.

McCLELLAN J.

Bill filed by the appellees to effect statutory redemption of real estate (Code, § 5746 et seq.), sold under power of sale in a mortgage given to secure the payment of $2,000. Redemption was awarded the complainants. In 1914 the mortgage was executed to W. W. Shannon by L. A. and Guy Jack. Prior to foreclosure by the mortgagee's executor, the mortgagors conveyed the land covered by the mortgage to complainants appellees. At the subsequent foreclosure sale, the validity of which is not at all questioned, W. L. Shannon and other heirs of W. W. Shannon purchased the land at the bid sum of $2,200, an amount about $400 less than the mortgage debt. On November 29, 1918, these purchasers at the foreclosure sale conveyed the land, by warranty deed, to M. R. Smith appellant, upon the recited consideration of $3,500, and Smith gave them a mortgage to secure this purchase money, on which mortgage nothing had been paid when the bill was filed. After his purchase Smith made permanent improvements on the land. The complainants aver a tender to Smith of $2,700, which, aside from the contested matter of the value of permanent improvements, was a sum sufficient to effect redemption.

The complainants are of a class, vendees of mortgagors, entitled to redeem under the statutory system. Code, § 5746 et seq. The conveyance to Smith by the purchasers at the foreclosure sale was, of course, subject to the redemption the cited statutes provide. Smith acquired thereby the legal title to the land. Since statutory redemption is designed to operate upon, to divest the legal title (Morrison v. Formby, 191 Ala. 104, 107, 67 So. 668), the complainants properly sought to effect redemption from Smith, the repository of the legal title. Code, § 5746. The mortgage from Smith to the purchasers at the foreclosure sale, reserving the right to possession in the mortgagor, was in equity (the rule is different at law), a security for the debt, not a conveyance in præsenti of the legal estate. Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679, among others in its line.

The foreclosure of the mortgage from the Jacks to Shannon completely extinguished the relation of mortgagor and mortgagee, and the purchasers at such sale acquired both the legal and the equitable titles, leaving outstanding only the statutory right of redemption. Jackson v. Tribble, 156 Ala. 480, 489, 490, 47 So. 310. The foreclosure sale satisfied the mortgage debt in the amount of the sum bid thereat. Harris v. Miller, 71 Ala. 26, 32, 33.

The testimony pertinent to the issues was presented to the court through depositions of some witnesses and through the oral examinations of others. Where, as here, the evidence is presented through both written and oral means, the trial court's conclusion will not be disturbed, unless unsupported in the evidence, or unless contrary to the great weight of the evidence. Cooper v. Rowe, 208 Ala. 494, 94 So. 725.

There was evidence tending to support the conclusion that the redemptioners, these complainants, made demand on Smith for an itemization of the sums necessary to effect redemption, to which end the trial court concluded. Under the stated rule, it cannot be affirmed on appeal that error affected this conclusion of the court below. Likewise there was evidence supportive of the effectiveness of the tender, otherwise than of the value of the permanent improvements, which was the subject of dispute.

The evidence left in no real doubt that Smith and the proposed redemptioners were unable to agree upon the value of permanent improvements made by Smith, whereupon, as provided in Code, §§ 5757, 5758, the process of arbitration became an obligation of the parties to thereby have ascertained the value of the permanent improvements. Prichard v. Sweeney, 109 Ala. 651, 19 So. 730.

The contention of the redemptioners, prevailing in the court below, was that Smith forfeited his right to the value of the permanent improvements on redemption under these provisions of Code, § 5758:

"If the latter [i. e., the person in possession] refuses to make such appointment [i. e., a referee], he forfeits his claim to compensation for such improvements."

The burden of proof to establish the forfeiture asserted was upon the proposed redemptioners. The finding of the trial court justified the redemptioners' contention of forfeiture by Smith of his claim for the value of the permanent improvements, thereby eliminating the value of permanent improvements as an obligation of redemptioners to effect redemption.

The statute (section 5758), in this aspect, predicates the forfeiture erected upon a refusal to appoint. There is, on the whole evidence, no doubt that the redemptioners nominated a...