Lacy v. Fowler

SOMERVILLE, J. [1] The bill of' complaint, as last amended, presents two prayers for relief in the alternative, the two aspects of the bill being founded on inconsistent states of facts, charged as true only in the alternative. As to such bills, it has been held that “each alternative must show a right of action.” A. C. L. R. Co. v. Woolfolk, 178 Ala. 190, 59 South. 633. And, there being no positive affirmation of the truth of either set of facts, any demurrable defect in either alternative aspect may be properly reached by a demurrer addressed to the bill as a whole. In this view, without passing upon the sufficiency of the bill in its second aspect, the trial court sustained the demurrer to the bill as last amended, on the ground that, as to its first alternative aspect, the allegations of fact were insufficient. We think the ruling of the court was free from error. [2] A bill for statutory redemption from a purchaser at mortgage foreclosure sale, or his grantee, must show that the respondent is such a purchaser or grantee, in privity with the mortgage title; and also it must show a payment into court of the redemption money previously tendered. The allegation that the respondents Betty Scott and A. ,T. Holcombe jointly own and control the property does not show that they hold it in privity with the mortgage, as purchasers or grantees thereunder. [3] And the allegation that complainant tendered to said Holcombe the purchase money with 10 per cent., and all other lawful charges, imposes upon complainant the duty of bringing the money into court as a prerequisite to redemptive relief. The statute (Code, § 5751) relieves a complainant of that duty only when he does not know the amount that is due, and the purchaser or his grantee has failed, for 10 days after written demand, to furnish .him with an itemized statement of the debt and all lawful charges, as required by section 5748. In each of these particulars, the bill, in ijra alternative aspect for redemption, was clearly defective, and the defects were pointed out by apt grounds of demurrer. [4] It is not improper to add that, as to its second alternative, that is, as a bill by a tenant in common to enforce his rights as a constructive coredemptioner, the bill clearly contains equity. But, under the present structure of the bill, the independent merit of that aspect cannot be considered or given effect. The decree of the circuit court will be affirmed. Affirmed. ANDERSON, C. J., and McCLEBLAN and THOMAS, JJ., concur.