Smith v. Jack

MeCLBLLAN, J. Bill filed by the appellees to effect statutory redemption of real estate (Code, § 5746 et seq.), sold under power of sale in a mortgage given to secure the' payment of $2,000. Redemption was awarded the complainants. In 1914 the mortgage was executed to W. W. Shannon by L. A. and Guy Jack. Prior to foreclosure by the mortgagee’s executor, the mortgagors conveyed the land covered by the mortgage to complainants, appellees. At the subsequent foreclosure sale, the validity of which is not at all questioned, W. L. Shannon and other heirs of W. W. Shannon purchased the land at the bid sum of $2,200, an amount about $400 less than the mortgage debt. On November 29, 1918, these purchasers at the foreT closure sale conveyed the land, by warranty deed, to M. R. Smith, appellant, upon the recited consideration of $3,500, and Smith gave them a mortgage to secure this purchase money, on which mortgage nothing-had been paid when the bill was filed. After his purchase Smith made permanent improvements on the land. The complainants aver a tender to Smith of $2,700, which, aside from the contested matter of the value of permanent improvements, was a sum sufficient to effect redemption. ’The complainants are of a class, vendees of mortgagors, entitled to redeem under the statutory system. Code, § 5746 et seq. The conveyance to Smith by the purchasers at the foreclosure sale was, of course, subject to the redemption the cited statutes provide. Smith acquired thereby the legal title to the land. Since statutory redemption is designed to operate upon, to divest the legal title (Morrison v. Formby, 191 Ala. 104, 107, 67 South. 668), the complainants properly sought to effect redemption from Smith, the repository of the legal title. Code, § 5746. The mortgage from Smith to the purchasers at the foreclosure sale, reserving the right to possession in the mortgagor, was in equity (the rule is different at law), a security for the debt, not a conveyance in prmsenti of the legal estate. Welsh v. Phillips, 54 Ala. 309, 25 Am. Rep. 679, among others in its line. The foreclosure of the mortgage from the Jacks to Shannon completely extinguished the relation of mortgagor and mortgagee, *522 and the purchasers at such sale acquired both the legal and the equitable titles, leaving outstanding only the statutory right of redemption. Jackson v. Tribble, 156 Ala. 480, 489, 490, 47 South. 310. The foreclosure sale satisfied the mortgage debt in the .amount of the sum bid thereat. Harris v. Miller, 71 Ala. 26, 32, 33. The testimony pertinent to the issues' was presented to the court through depositions of some witnesses and through the.oral examination^ of others. Where, as here, the evidence .is presented through both written and oral means, the trial court’s conclusion will not be disturbed, unless unsupported in the evidence, or unless contrary to the great weight of the ..evidence. Cooper v. Rowe, 208 Ala. 494, 94 South. 725. There was evidence tending to support the conclusion that the redemptioners, these complainants, made demand on Smith for an itemization of the sums necessary to effect . redemption, to which end the trial court concluded. Under the stated rule, it cannot be affirmed on appeal that error affected this conclusion of the court below. Likewise there was evidence supportive of the effectiveness of the tender, otherwise than of the value of the permanent improvements, which • was the subject of dispute. The evidence left in no real doubt that. Smith and the proposed redemptioners were unable to agree ufeon the value of permanent improvements made by Smith, ■ whereupon, • as provided in Code, §§ 5757, 5758, the process of arbitration became an obligation of the ■parties to thereby have ascertained the value of the permanent improvements. Prichard v. Sweeney, 109 Ala. 651, 19 South. 730. The contention of the redemptioners, prevailing in the court below, was that Smith forfeited his right to -the value of the permanent improvements on redemption under these provisions of.. Code, §■ 5758: “If the latter [i. e., the person in possession] refuses to make such appointment [i. e., a referee], he forfeits his claim to compensation for such improvements.” The burden of proof to establish the forfeiture asserted was upon the proposed redemptioners. The finding of the trial court justified the redemptioners’ contention of forfeiture by Smith of his. cláim for the value of the permanent improvements, thereby eliminating the value of permanent improvements as an obligation of redemptioners to effect redemption. The statute (section 5758), in this aspect, predicates the forfeiture erected upon a refusal to appoint. There is, on the whole evidence, no doubt that the redemptioners nominated a referee to ascertain the disputed matter of the value of the permanent improvements, whereupon it became Smith’s 'duty to appoint a referee, which Smith in fact did.. The redemptioners contend that, after appointing his referee, Smith recanted, avowing to one of the redemptioners his revocation of the appointment of his referee. Smith not only did not refuse to appoint a referee; he actually appointed Pinson referee. The issue is whether Smith revoked that appointment in such sort as to constitute his act in the premises a refusal, creating the forfeiture the statute (section 5758) predicates of a refusal to appoint.' Notwithstanding the conflicting evidence relevant to that inquiry, reviewed with recognition of the rule. of revision before stated, this court is of the opinion that the whole evidence does not at all justify the finding that Smith subsequently revoked the appointment of Pinson as his referee. While there is evidencé supporting the redemptioners’ version that he did revoke' Pinson’s appointment, the evidence to the contrary, including the action, of one of the redemptioners (the other was not present), leaves the matter in no rational doubt. Three witnesses were examined with respect to this inquiry, Guy Jack, Jr., Smith (appellant), and Pinson. It is established beyond cavil that these three men met, with redemptioners’ referee, Reynolds, at Geiger, in October, 1919, at Pinson's office. Jack testified to declarations by Smith revoking his appointment of Pinson as Smith’s referee. Both Pinson and Smith testified to the contrary. Pinson and Smith testified that, at Pinson’s suggestion, Jack and Smith agreed to go to see ■ Shannon at Macon, Miss., in reference to the matter in question. That Jack and Smith did go to Macon, for conference with Shailnon, is established. The journey of Jack and Smith1 to confer with Shannon at Macon consists alone with the view, disclosed by the testimony of Pinson and Smith, that the matter of arbitration of the value of the improvements, instead of being terminated by declarations Jack attributes to Smith, was regarded by these parties as the subject of negotiations. The fact that Shannon was absent, and that Jack would not remain, did not detract from the evidential effect of his act in going to see Shannon for the purpose indicated. If Smith had taken the position Jack says he did take, the journey 'to Macon was an wholly unreasonable performance on the part of both Jack and Smith. .The court erred in attaining and enforcing the conclusion that Smith forfeited “his claim to compensation for” permanent improvements because he refused to appoint a referee, as required by Code, §§ 5757, 5758. The decree is reversed for ‘that error, to the end only that the value of the permanent im-. provements made by Smith after his purchase may be. ascertained. Otherwise the decree is affirmed. ■ Affirmed in part, reversed in part, and re *523 inanded; the costs of appeal being taxed against the appellees. ‘ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.