Estes v. Johnson

• Citation: 174 So. 632,234 Ala. 191
• Decision Date: 20 May 1937
• Docket Number: 6 Div. 103
• Parties: ESTES et al. v. JOHNSON.
• Court: Alabama Supreme Court

174 So. 632

234 Ala. 191

ESTES et al. v. JOHNSON.

6 Div. 103

Supreme Court of Alabama

May 20, 1937

Appeal from Circuit Court, Walker County; R.L. Balnton, Judge.

Bill for redemption by Joe Johnson against J.F. Estes and another. From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

J.J Curtis and Herman Maddox, both of Jasper, for appellants.

Arthur Fite, of Jasper, for appellee.

FOSTER Justice.

The bill in this case seeks to enforce the statutory right to redeem land sold under the power contained in a mortgage.

The mortgage was made to a bank, and was foreclosed by the superintendent of banks liquidating the affairs of the mortgagee. The superintendent of banks bought in the property at less than the mortgage debt, and thereafter sold the land to respondents, without transferring to them the unpaid balance of the debt. After all this occurred, the mortgagors "sold, transferred, conveyed and assigned to this complainant in writing their right to redeem the said lands from the foreclosure sale." He filed this suit within the time provided by law in which it may be done. He alleged a tender of the amount bid at the foreclosure sale, and 10 per cent. interest, and a demand for a statement of lawful charges and items claimed by defendants to be necessary to redeem, and that no such statement was furnished complainant.

The court overruled the demurrer to the bill.

Appellants contend that complainant had no interest in the land, and that, without such interest, an assignment of the mere right of redemption is not effective to confer it so as to justify such a bill. But since the Code of 1907, § 5746 (section 10140, Code of 1923), the mortgagor has been able, after foreclosure, to convey such a right to a stranger to the title, who could then enforce it in equity. Johnson v Davis, 180 Ala. 143, 60 So. 799; Leith v. Galloway Coal Co., 189 Ala. 204, 66 So. 149; Whiteman v Taber, 203 Ala. 496, 83 So. 595; Toney v. Chenault, 204 Ala. 329, 85 So. 742. The parties on whom the statute confers the right may enforce it, though they otherwise own no such interest as would justify it. Malone v. Nelson, 232 Ala. 243, 167 So. 714.

The authorities predicated upon rights conferred by law prior to the changes wrought by sections 5746, Code of 1907, and 10140, Code of 1923, have no application now in so far as they are affected by such change of the law.

Appellants also contend that complainant should have offered to pay the balance of the mortgage debt not paid by the amount of the purchase price. But this is not required under subdivision 4 of section 10145, unless "the redemption is made from a person who at the time of redemption owned the debt...