Theater Co. v. Manning, 1 Div. 4.
| Decision Date | 01 December 1938 |
| Docket Number | 1 Div. 4. |
| Citation | 236 Ala. 670,185 So. 171 |
| Parties | THEATER CO. v. MANNING ET AL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.
Bill in equity by the Theater Company, a corporation, against J. E Manning and Saenger Realty Corporation, for declaratory judgment as to redemption rights of complainant. From a decree sustaining a demurrer to the bill and dismissing it complainant appeals.
Affirmed.
George A. Sossaman, of Mobile, for appellant.
Ball & Ball, of Montgomery, for appellees.
This appeal is from the decree of the circuit court, sitting in equity, sustaining the demurrer of the defendants to the bill and dismissing the same.
The bill is filed by a mortgagor, within four months and a day after foreclosure, and seeks a declaratory decree as to the rights of the complainant to redeem under the provisions of §§ 10140, 10141, of the Code.
The filing of the bill was provoked by a notice issued by the defendant Manning, dated on the day of foreclosure, and which came to the complainant, as the bill avers, on the 18th of September, 1937, three months and some days after the day of foreclosure, to the effect that he, Manning, had acquired by assignment an unforeclosed junior mortgage on the property embraced in the foreclosure, executed by the complainant to James E. and Walter P. Martin, together with the junior mortgagee's statutory right of redemption, and that "in accordance with Section 10141 of the Code of Alabama, that the undersigned, [Manning] as the owner of said second mortgage and the notes secured thereby and as assignee of the aforesaid rights, intends to redeem said property from the aforesaid foreclosure sale thereof made on June 15, 1937."
The original bill, in paragraph six thereof, contains the following: "Complainant avers that it is and will be the contention of the Respondents, jointly and severally, upon the failure of Complainant Theater Company to effect a redemption of said Lyric Theater property from the Respondent Saenger Realty Corporation within sixty days after the service of said notice from Respondent Manning, that Complainant Theater Company may not further or thereafter effect a redemption of said property although it be within two years from such foreclosure."
By amendment paragraph six was stricken from the bill and in lieu thereof allegations in respect to incidents and transactions occurring after the bill was filed were...
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