Walden v. Speigner

STONE, C. J. I was dissatisfied with the ruling in Powers v. Andrews, 84 Ala. 289. I preferred then, and would still prefer, to follow the decisions made by this court in Paulling v. Meade, 23 Ala. 505, and Bailey v. Timberlake, 74 Ala. 221. I think the statute should be liberally interpreted, and that whoever, at the time of the sale, is the owner of the equity of redemption, or residuum of the estate, whether by purchase, succession, or by devolution, should be [381] let in to redeem; in other words, that the statutory right to redeem, within two years after sale, should be the necessary resultant of the equitable right to redeem or disincumber by paying off the incumbrance before sale. The rule was differently announced in Powers v. Andrews, supra, at the last term. We then held, that only persons who fall within one of the enumerated classes can claim this right. In addition to judgment creditors, whose right is not presented in the present record, we enumerated all the classes upon whom the statute confers this right. Mrs. Walden was and is neither the debtor, his personal representative, his heir or devisee, nor a child who was the grantee of Walden; who owned the land sold. She was and is only his widow, claiming the right to redeem, because the property was the family homestead at the date of the mortgage, at the time of his death, and at the time of the sale under the mortgage. She supplements her claim by showing that Walden, her husband, was insolvent when he died, and that in less than two years after the sale the estate was declared insolvent, and the property set apart to her, as her homestead. Under the principles declared in Powers v. Andrews, we feel bound to deny her the right to redeem. Affirmed.