Wootten v. Vaughn
| Decision Date | 17 April 1919 |
| Docket Number | 7 Div. 983 |
| Citation | 202 Ala. 684,81 So. 660 |
| Parties | WOOTTEN et al. v. VAUGHN. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, De Kalb County; W.W. Haralson, Judge.
Suit by W.W. Vaughn against S.E. Wootten and others. From interlocutory decree overruling defendants' demurrer they appeal. Reversed and remanded.
Isbell & Scott, of Ft. Payne, for appellants.
A.E Hawkins and J.A. Johnson, both of Ft. Payne, for appellee.
The appeal is taken from an interlocutory decree overruling the demurrer of defendants averring, among other grounds, that the bill does not allege that complainant offered to redeem before bringing the suit, that Belle Wootten, wife of S.E Wootten, was not a necessary or proper party thereto, and misjoinder of parties in the different relief sought against defendants Callahan and the Woottens, and also from a final decree permitting the redemption and ascertainment of the amount due and allowing to complainant credit for certain sums received as rents of the land by respondent S.E. Wootten, and taxing costs against defendant Wootten. Appellants S.E. Wootten and Belle Wootten severally assign error and insist upon the same in argument of counsel.
The wife's right of dower is not a property right, even after the death of the husband; it is only a right of action. Chavers v. Mayo, 79 So. 594, 596; Yarbrough v. Yarbrough, 75 So. 932; McGough v. Sweetser, 97 Ala. 361, 364, 12 So. 162, 19 L.R.A. 470. In First National Bank v. Elliott, 125 Ala. 646, 659, 27 So. 7, 47 L.R.A. 742, 82 Am.St.Rep. 268, the court held that the joinder of Mr. Elliott with his wife in a bill for redemption by a judgment creditor was to be justified by the averment that the purchaser at foreclosure sale, Mrs. Elliott, had thereafter joined with her husband in a contract of sale of the lands to a third person. The prayer of the bill in the Elliott Case was to require husband and wife to execute a conveyance on effectuation of redemption. No such averment is contained in the bill in the instant case. The right of redemption was prior and paramount to any right of which the wife of the purchaser was dowable, and she was not a necessary or proper party respondent. The case of McGough v. Sweetser, supra, is not opposed to this view. There the husband and wife had joined in a mortgage on the husband's lands that was foreclosed in chancery, and on the death of the husband within the statutory time for redemption the wife filed her bill to redeem, offering only to pay the amount bid at foreclosure and interest, and not the full amount due on the mortgage debt. Held that, when a wife joins her husband in the execution of a mortgage on lands owned by him which is afterwards foreclosed by proceedings in chancery to which she was not a party, she will not be allowed to redeem such lands without paying the entire mortgage debt, although the purchaser at such foreclosure sale paid greatly less than the amount of the mortgage; that is to say, the wife was permitted to redeem "under the unforeclosed dower rights" upon paying the full amount due on the mortgage debt, and not for a less sum. Johns v. Anchors, 153 Ala. 498, 45 So. 218. Respondent Callahan (the mortgagee) was properly made a party to the bill. Chancery rules 106, 107 (Code 1907, p. 1562), provide that "in mortgage suits, it shall be sufficient to bring in subsequent incumbrancers to state that they claim some interest in the subject of the bill, and pray for a summons to them to answer" at any stage of the proceedings that such interest shall be discovered.
On final hearing it will be necessary to know the nature of the title acquired by and character of the possession of a junior mortgagee purchasing at foreclosure sale of a senior mortgage. As such purchaser taking possession of the lands after foreclosure, is such possession and the subsequent receipt of income and profits from said lands to be referred to that of the owner of the title or as a mortgagee taking possession of the mortgaged property without foreclosure? The nature and difference between the right of redemption of real estate under the statute, where the equity of redemption has been foreclosed (Code 1907, § 5746 et seq.), and the right and exercise of the equity of redemption by a mortgagor, where the same has not been foreclosed, has been the subject of frequent discussion by the courts. The distinction between the nature and exercise of such rights or interest and the respective liabilities of the parties as distinguished by the courts must be kept in mind to a right decree for redemption under the statute in the instant case. Johnson v. Smith, 190 Ala. 521, 524, 525, 67 So. 401; Dinkins v. Latham, 79 So. 493, 495; Baker, Lyons & Co. v. Eliasberg, etc., 79 So. 13; Drum & Ezekiel v. Bryan, 193 Ala. 395, 69 So. 483; Leith v. Galloway Coal Co., 189 Ala. 204, 66 So. 149.
It is held in this jurisdiction that, when a junior mortgagee redeems land sold by a valid foreclosure of a senior mortgage, he acquires an indefeasible legal title thereto. Francis v. Sheats, 153 Ala. 468, 45 So. 241, 127 Am.St.Rep. 61, 64, 65; 1 Jones on Mortg. § 711. In Cramer & Cohen v. Watson, 73 Ala. 127, Mr. Chief Justice Brickell writing, it is declared that, where a junior mortgagee becomes the purchaser of lands at a sale under a power contained in a prior mortgage, the debt secured by his mortgage is a lawful charge upon the lands to the payment of which a judgment creditor seeking to redeem under the statute is bound, and an offer to redeem which does not include such debt, the amount thereof being known, is insufficient, and that such junior mortgagee, purchasing at such sale and taking possession under his purchase, does not stand in the relation of mortgagee in possession to a judgment creditor seeking to redeem under the statute, but holds as purchaser and absolute owner; and the rents and profits accruing to him while in such possession cannot be applied to the extinguishment of the debt secured by his junior mortgage, thereby lessening the amount which the creditor would have to pay or offer to pay before he would be entitled to redeem. See, also, Williams v. Rouse, 124 Ala. 160, 161, 27 So. 16; Spoor v. Phillips, 27 Ala. 193, 197; First Nat. Bank of Anniston v. Elliott, supra, 125 Ala. 653, 27 So. 7, 47 L.R.A. 742, 82 Am.St.Rep. 268; Johnson v. Davis, 180 Ala. 143, 147; Hale v. Kinnaird, 76 So. 954, 958 (7-10); Morrison v. Formby, 191 Ala. 104, 106, 107, 67 So. 668; 27 Cyc. 839.
It is only after an offer to redeem, accompanied by a tender of the amount required under the statute to effectuate such redemption, and a refusal on the part of the person to whom redemption is properly sought and tendered, does such purchaser in possession become liable for waste thereafter committed by him or for accruing rents thereafter collected by him from the lands as the owner thereof by such purchase. Johnson v. Davis, supra; Hale v. Kinnaird, supra. The tender required by statute must be observed and properly averred in a bill to redeem. Code 1907, § 5746 et seq.; Lord v. Blue, 76 So. 463; Thompson v. Brown, 76 So. 298, 299; Hale v. Kinnaird, supra; Wittmeier v. Cranford, 73 So. 981; Vick v. Beverly, 112 Ala. 458, 21 So. 325. A sufficient reason must be averred in a bill to redeem in order to excuse a redemptioner's failure to make tender of the amount necessary for redemption; and the offer must be made good by a deposit of the amount due with the register of the court when the bill is filed. Murphree v. Summerlin, 114 Ala. 54, 21 So. 470; Seals v. Rogers, 172 Ala. 651, 55 So. 417; Beatty v. Brown, 101 Ala. 695, 14 So. 368; Wittmeier v. Cranford, supra; Johnson v. Davis, supra; Dozier v. Farrior, 187 Ala. 181, 65 So. 364.
Of tender and sufficient explanation and excuse for its failure, Mr. Justice Mayfield recently stated:
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