Murphree v. Summerlin

COLEMAN, J. — The bill was filed to enforce the stat-’ utory right of redemption of lands, which had been sold under a foreclosure decree of the chancery court, and purchased by appellant. The equitable right of a mortgagor to redeem the mortgaged lands, a right which remains vested in him until divested by foreclosure, is different from the statutory right to redeem, which arises only after foreclosure. When a bill is filed to enforce the equitable right of redemption, an averment of a prior tender is not necessary to the equity of the bill. If the complainant offers to pay all that might be found to be due, and to do equity, that is sufficient. — Thomas v. Jones, 84 Ala. 802; McGuire v. Van Pelt, 55 Ala. 344; Beebe v. Buxton, 99 Ala. 117; McCally v. Otey, 90 Ala. 302; Ib., 99 Ala. 588. The right to redeem after foreclosure is purely statutory ; and to enforce it, the terms of the statute must be complied with. This requires delivery of the land to the purchaser, upon his demand, within ten days after the sale, and payment or tender within two years of the purchase money, with ten per cent, per annum, and all other lawful charges. When a mortgagor or other person entitled to the statutory redemption, applies to a court of equity to enforce this right, he must do equity. A previous tender alone is not sufficient, for if this were allowed, he might get the land and retain the purchase money also. The payment of the money into court with the bill and the offer to abide the decree of the court, is indispensable to give the bill equity. The demurrer to the bill was well taken, and should have been sustained. Beatty v. Brown, 101 Ala. 695; Beebe v. Buxton, 99 Ala. 117. The evidence is sufficient to show that complainant delivered possession of the land to the purchaser. So far as this phase of the case affects complainant’s right to redeem, the averments and proof were all that the statute requires. Reversed and remanded.