Summary
In Johnson v. Williams, 212 Ala. 319, 102 So. 527, upon which counsel for defendant lays some stress, the statement rendered was substantially proper, and the slight inaccuracy was self-correcting.
Summary of this case from Ahlrichs v. JonesOpinion
4 Div. 176.
December 18, 1924.
Appeal from Circuit Court, Dale County; J. S. Williams, Judge.
Sollie Sollie, of Ozark, for appellant.
Failure of the wife to surrender possession does not defeat her right to redeem. Thomas v. Blair, 208 Ala. 48, 93 So. 704. Complainant was excused from making tender. Code 1907, § 5748; Johnson v. Davis, 180 Ala. 143, 60 So. 799; Slaughter v. Webb, 205 Ala. 334, 87 So. 854.
Riley Stokes, of Ozark, for appellee.
The trial court correctly sustained demurrer to the bill. Francis v. White, 160 Ala. 523, 49 So. 334; Code 1907, § 5749.
The bill was for redemption, demurrer was sustained, and complainant appeals. The bill is by the wife, and is not subject to the forfeiture created by Code of 1907, § 5747. Thomas v. Blair, 208 Ala. 48, 93 So. 704.
A resort to equity is only necessary when (1) the creditor or purchaser (a) refuses to accept the tender and to convey, or (b) declines to inform the debtor or redemptioner of the amount necessary to be tendered, when known to him and not to the debtor or redemptioner; or (2) it is impossible or impracticable for the debtor or redemptioner to conform to the requirements of the statute without the aid of a court of equity. Francis v. White, 160 Ala. 523, 49 So. 334; s. c., 142 Ala. 590, 39 So. 174; Lord v. Blue, 200 Ala. 521, 76 So. 463; Whiteman v. Taber, 203 Ala. 496, 83 So. 595; Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Snow v. Montesano Land Co., 206 Ala. 311, 89 So. 719.
The excuse for the failure of tender of the purchase money, interest, and other lawful charges, as provided by statute (Code 1907, § 5749), or the facts showing the inability of complainant to ascertain the amount necessary to be paid or tendered, has been the subject of consideration in comparatively recent cases. In Johnson v. Davis, 180 Ala. 143, 60 So. 799, the statement furnished failed to give credit for the personal property embraced in the mortgage that was of substantial worth; in Francis v. White, supra, the averments of the bill were that actual performance "on the debtor's part was prevented or waived by the party to whom performance was due"; in Lord v. Blue, supra, the land was sold in parcels and the mortgagee purchased one of the parcels; in Wootten v. Vaughn, 202 Ala. 684, 81 So. 660, the right was that of a junior mortgagee who had purchased at foreclosure sale by the senior mortgagee, and an accounting for rents and waste was sought; in Randolph v. Bradford, 204 Ala. 378, 86 So. 39, the suit was for equitable redemption; in Baker v. Burdeshaw, 132 Ala. 166, 31 So. 497, there was refusal to inform complainant of the amount due on account of taxes and permanent improvements, and complainant was averred to be ignorant and to have had no means of ascertaining the same; in Slaughter v. Webb, supra, the full and correct amount necessary to redeem was averred not to be ascertainable.
In Snow v. Montesano Land Co., 206 Ala. 310, 89 So. 719, the purchaser had conveyed the land in several parcels, and it was necessary to ascertain the several and separate amounts required to effectuate redemption; the purchaser having put it beyond redemptioner's power to redeem as provided by statute. The several sums necessary to redemption as provided by statute are discussed at that case. In Toney v. Chenault, 204 Ala. 329, 85 So. 742, the purchaser at foreclosure sale refused to allow redemption under the statute, unless the portion of the land asserted to stand in the names of third persons was omitted; the assignee attempted to exercise the right; held, relieved of the duty of demanding statement, etc., and permitted to assert his right by bill in equity. The nonresidence or absence of the respondent is not alleged. Beatty v. Brown, 101 Ala. 695, 14 So. 368; Beebe v. Buxton, 99 Ala. 117, 12 So. 567; Lehman, Durr Co. v. Collins, 69 Ala. 127; Stocks v. Young, 67 Ala. 341.
As we construe the second paragraph of the statement of the purchaser, it was not a demand for the payment of the judgment rendered in the circuit court of Dale county in favor of J. H. Williams against William N. Johnson on September 18, 1916, for $328.76, certificate duly filed and recorded in the office of probate judge, etc.; nor was it the imposition or demand of a condition precedent for statutory redemption — the payment of the lien claimed on the property by reason of the judgment that excused the bona fide tender of the amount necessary to redeem the land from the foreclosure sale. The amount of record fee paid by the purchaser "for recording foreclosure deed," $.95 was not a proper charge or expense, was not within the statute (Snow v. Montesano Land Co., supra), and was of easy elimination by the redemptioner in making the tender. The amount of interest was of easy verification. The complainant has shown no excuse which the law recognizes for failure to aver a tender; and by the exercise of due diligence she could have ascertained the necessary and required amount without the aid of equity.
The judgment of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.