Wittmeier v. Cranford

• Decision Date: 11 January 1917
• Docket Number: 6 Div. 470
• Citation: 199 Ala. 1,73 So. 981
• Parties: WITTMEIER et al. v. CRANFORD.
• Court: Alabama Supreme Court

73 So. 981

199 Ala. 1

WITTMEIER et al. v. CRANFORD.

6 Div. 470

Supreme Court of Alabama

January 11, 1917

Rehearing Denied Feb. 1, 1917

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

Bill by Asa Cranford, individually, and as trustee, against J.S Wittmeier and the Oneonta Trust & Banking Company to redeem lands from a mortgage sale. From a decree overruling demurrers, respondents appeal. Reversed, rendered, and remanded.

T.A Murphree and Henry Upson Sims, both of Birmingham, for appellants.

Russell & Johnson and G.W. Darden, all of Oneonta, for appellee.

ANDERSON C.J.

It may be conceded that the quitclaim deeds from Walker and Grigsby the mortgagors, were sufficient to assign any rights of redemption they had to Cranford, the complainant, equity or statutory, as the conveyances are broader than the one considered in the case of Lewis v. McBride, 176 Ala. 134, 57 So. 705. The bill, however, does not show that Walker or Grigsby had any equity of redemption to assign, as there is nothing to indicate that the sale was improperly or irregularly made so as to create an equity of redemption. The mortgage expressly authorized the grantee therein to purchase at the sale. Therefore, if the complainant got anything under the deeds from Walker and Grigsby it was the assignment of the statutory right of redemption, and as a bill to redeem under the statute it was defective as it did not show a tender of the purchase money or an excuse for not doing so as provided by section 5748 of the Code of 1907. Lewis v. McBride, supra; Francis v. White, 142 Ala. 590, 39 So. 174. True, the bill attempts to set up a good excuse for not tendering the money to the purchaser, but this did not relieve the complainant from averring a present tender by payment into court. Beatty v. Brown, 101 Ala. 695, 14 So. 368. The bill was subject to the respondent's demurrer, and the decree of the chancery court is reversed, and one is here rendered sustaining same.

The complainant derived no right to redeem under the assignment from the trustee in bankruptcy, and must rely upon the assignments from Walker and Grigsby. While this court held in the case of Johnson v. Davis, 180 Ala. 143, 60 So 799, that the trustee in bankruptcy was an assignee as contemplated by the redemption statute, we also held in the case of Leith v. Galloway Coal Co., 189 Ala. 204, 66 So. 149, that the right did not extend to the...