Baker v. Burdeshaw

SHARPE, J. — Stocks v. Young, 67 Ala. 341, cited by the appellant as authority for the proposition that a bill to enforce the statutory right of redemption must allege possession of the land was delivered within fen days from the sale. The opinion in that case seems to point- out. as an objection to the bill there considered that, it did not contain such allegation. But from the same opinion it is seen there may be cases meriting relief where such an averment would be improper, as where possession has been retained by consent of the purchaser. The same can be seen from the statute: “The possession of the land must be delivered to the purchaser within ten days after sale thereof, by the debtor if in [168] his possession, or of any one holding under him by privity of title if in his possession, on demand of the purchaser or his vendee.” Since there can be no delivery on demand where there is no demand, it follows that in such case, the redemptioner is not precluded from redeeming simply by not delivering possession. The statute has been construed as interposing a condition precedent, so that to' stand in the attitude' of re-demptioners the debtor, if of the class referred to, must have complied with its requirements.—Henderson v. Hambrick, 29 So. Rep. 923; Stocks v. Young, supra; Helms v. Kennon, 88 Ala. 329; And a similar construction was placed on the statute as it -formerly existed when it was silent as to demand and the ten days period, and the condition was simply for delivery of possession.—Clay’s Dig., p. 503; § 5; Paulding v. Meade, 23 Ala. 505; Sandford v. Octalomi, lb. 669. Therefore to show such compliance a bill should allege either a delivery of possession in accordance with the statute or a valid reason for not delivering. Such a reason would ordinarily be furnished by the absence of a demand for possession. The purpose of the provision in question is not to coerce a transfer of possession except at the purchaser’s option. It is to facilitate his entry on the land, and being in his interest solely, he can waive and remove ,the condition. To his demand whether made -after or within ten days the possessor is boiind to respond. Without it the latter’s retention of possession may well be referred to consent. This bill may be deficient in failing to -show the alleged delivery was pursuant to the first demand of defendant, but the demurrer does not point out this objection. Tender -of the redemption money, though ordinarily essential to precede the suit, is not always so. When to make a proper tender is rendered impracticable by the act -of the per'-son to whom it is due that fact will on proper averments be sufficient to excuse a failure to tender.—Lehman, Durr & Co. v. Collins. 69 Ala. 127, and authorities sibpra. Defendant’s alleged refusal to inform complainant of the amount -due him on account of taxes and permanent improvements coupled with the [169] averments that she was ignorant of and had no means of ascertaining same, sufficiently state an excuse for failing to include such charges in her tender. Because he is presumed to have had the more accurate information of the character and value of the improvements if any had been made, it was defendant’s duty, on request, to furnish complainant, information, if she was entitled to redeem, of the character and value of those improvements.'—Pritchard v. Sweeney, 109 Ala. 661. But the bill does not show she tendered or offered to pay all lawful charges or that there were no lawful charges besides taxes within her knowledge, and in this particular it is subject to the demurrer. If she knew of such and did not include them in her tender or offer, the alleged fact that defendant refused to inform her of them did not excuse her failure to so include them. The bill is also defective in that being filed in a single aspect seeking redemption only it avers nothing was due on the mortgage at the time of the sale. Taken as true this averment shows complainant has neither right nor need of redemption. The power of sale was annulled when the debt was extinguished. Thereafter it could not have been validly exercised, and by force of the statute, Code, § 1067, payment of the debt divested the title passing by the mortgage. 'The decree appealed from Avill be reversed and one will be here rendered 'sustaining the demurrer and allowing thirty days for amendment of the bill in the chancery court. Let the cause be remanded. Reversed, rendered and remanded.