Carlin v. Jones

STONE, J. — It is contended for appellee, that the bill of complainant — appellant here — contains no equity, and therefore we should refuse to consider his assignments of error, even if we find the chancellor erred to his prejudice. This precise question was presented in Bobe v. Stickney, 36 Ala. 482, and we then ruled adversely to the argument made here. No question on the sufficiency of the bill is, or can be, presented on this appeal, taken, as it is, by the complainant in the court below. We are satisfied with the reasons there given, and adhere to the decision then pronounced. 2. But, if the question of the sufficiency of the tender, or excuse for not making it personally to Mrs. Jones, was, or could be, raised on this appeal, we think the bill must be pronounced sufficient, under the rule declared in Spoor v. Phillips, 27 Ala. 193. See, also, Freeman v. Jordan, 17 Ala. 500. This question is, mainly, one of practice; and we think no good would result from overturning the rule, while very great injustice may be done, if we disregard it, to those who have been misled by it. Stare decisis. We are referred to Daughdrill v. Sweeny, 41 Ala. 310, as laying down a different rule. That case departed from the principles declared in Nelson v. Dunn, 15 Ala. 501, 515, and Cain v. Gimon, 36 Ala. 168; and was overruled in McGuire v. Van Pelt, at the present term. 3. Carlin acquired all his right to the lands in contro [630] versy, and to redeem tbe same, after it bad been sold and conveyed under tbe power contained in tbe mortgage. Tbis is urged as a reason wby be should not be allowed to redeem. As this question, under tbe rule aboye declared, is not before us, we propose not to consider it. — See Hepburn v. Kerr, 9 Humph. 726; Jones v. Planters' Bank, 5 Humph. 619; Kennedy v. Howard, 6 Humph. 66; Bigelow v. Wilson, 1 Pick. 485, 492; Tucker v. Buffum, 16 Pick. 46; Huffaker v. Bowman, 4 Sneed, 89. These decisions place a liberal construction on statutes which allow redemption of lands sold under executions, decrees, mortgages, etc. 4. We think the court yery rightly permitted Cornish & Sharpe to intervene, and make themselves parties, under the facts shown in this record. The powers of the Court of Chancery, if undue delay and expense be not thereby cast on the complainant, should always be so moulded as to do complete justice to all parties in interest. On this principle rests all the doctrine of marshalling securities, and determining the priorities of subordinate liens and equities. — See Cook v. Mancius, 5 Johns. Ch. 89; Whitbeck v. Edgar, 2 Barb. Ch. Rep. 106. 5. The only remaining question is as to the right of the complainant to recover rents, after his tender and offer to redeem. He did not bring the redemption money into court; only offered to do so. He has probably had the continued use of the money. The chancellor found that he had, and we think he rightly came to this conclusion. Carlin has not claimed or shown that he kept the identical money on hand, with which he offered to redeem. Mrs. Jones has all the while denied and resisted Carlin’s right to redeem; and she, and those claiming under her, have had the possession, and the rents and profits of the lands. The chancellor decreed the complainant’s right to redeem; but, inasmuch as he had, all the while, had the use of his money, he held Mrs. Jones, and those standing in her right, accountable for no rents. In this single respect, we think the chancellor erred. After the tender, Mrs. Jones held the land in her own wrong. To relieve her from rents, is to offer an inducement to all persons, in like conditions, to resist redemption and retain possession, that they may enjoy the rents and profits. This would be to reward a violation of the law. When the debtor, or mortgagor, or one standing in such right, makes proper payment or tender to secure redemption, “ such payment or tender has the effect to re-in vest him with the title.”- — Code of 1876, § 2879. This clothes him with all the rights and incidents of ownership, and, among other tilings, with the right to be compensated for the use and occupation of his lands, wrong [631] fully withheld from him. He is entitled to annual rent, with interest on each year’s renting, until the coming in of the report. But, against this, she and those holding under her are entitled to a credit for any taxes she or they may have paid on said lands, as of the time such payments were made, with proper interest thereon. But, inasmuch as the complainant has had the use of his money since the tender was made, in order to do complete equity it is right to charge him with interest thereon from the time of the tender, until the payment of the money into court; and the decree of the chancellor is modified accordingly. It is referred to the register of said court, to take an account, and report to the said Chancery Court on the several matters of rent, taxes paid, and interest on the redemption money, in addition to the matters referred to him by the decree of the chancellor, and that he report to the chancellor. In taking the account, he will consult the pleadings and proofs on file, and all other legal evidence that may be offered. All other questions are reserved for decision by the chancellor. [Reversed and rendered.