Thompson v. Brown

• Decision Date: 14 June 1917
• Docket Number: 6 Div. 252
• Citation: 200 Ala. 382,76 So. 298
• Parties: THOMPSON v. BROWN.
• Court: Alabama Supreme Court

76 So. 298

200 Ala. 382

THOMPSON v. BROWN.

6 Div. 252

Supreme Court of Alabama

June 14, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by Morgan L. Brown against N.F. Thompson and others. Decree for complainant, and Thompson appeals. Affirmed.

J.L Drennen, of Birmingham, for appellant.

Harsh Harsh & Harsh, and McQueen & Ellis, all of Birmingham, for appellee.

SOMERVILLE J.

Redemptors of land sold under execution must pay or tender the required amount of money to the purchaser or his vendee. Code, §§ 5746-5749. One entitled to redeem "must, however, have notice, or information of facts sufficient to put him on inquiry that the purchaser has divested himself of title, and who has succeeded to it, before he can be required to make the offer and tender to the alienee or grantee of the purchaser, or to any one else than the purchaser. In the absence of such notice, or of such information, it is to the purchaser only he can apply for redemption, and it is his title he proposes to acquire." Lehman & Co. v. Collins, 69 Ala. 127, 132. Of course, if the alienee takes and holds the land in actual visible possession, this is sufficient notice of the alienation and payment or tender must be then made to such alienee. Camp v. Simon, 34 Ala. 126. If the allegations of the bill are true, then complainant has already effected a complete redemption of the land, and Matthews' previous alienation to McKee, of which complainant had no notice, was without effect. Equally ineffective, also, was the subsequent alienation from McKee to Thompson.

These alienations, it is true, incumber the title with a cloud, which a chancery court will remove by cancellation; but the bill must, for that purpose, show that complainant is in possession of the land. Drum v. Bryan, 193 Ala. 395, 69 So. 483. As to this particular aspect of the bill, under the general prayer for relief, it was plainly subject to the demurrer.

Unquestionably, complainant may, if he chooses, waive the effect of his redemption from Matthews, as well as the alleged illegality of the execution sale, and seek redemption from an alienee. Tested by the special prayers of the bill, its purpose seems to be to declare the execution sale void, or, in the alternative, to effect another redemption from Matthews' subalienee, Thompson. No facts are alleged to support the charge that the execution sale was illegal, or not binding on complainant, and in this aspect the bill was also...