Fuller v. Varnum

TYSON, J.- This appeal is by the respondents from a decree sustaining their demurrer to the bill of complaint, but overruling their motion- to dismiss it for want of equity. • ■ - It is first insisted that the motion should have .been granted because the bill fails to aver that complainant tendered the purchase price paid at foreclosure • sale, with 10 per cent, thereon; that it only avers- a tender of $249, the price paid, at said sale. In a previous -paragraph, however, it is averred that only $200. was the purchase price paid at the foreclosure sale. The note and mortgage showing the amount of the mortgage debt is made an exhibit to the bill, and shows a credit thereon. [339] It is apparent from this showing that the averments of the bill may be amended so as to show that the amount tendered, to-wit, $249, included ■ all lawful charges known to complainant at the date of the tender. If any taxes were paid by the purchasers, they could be also shown by an amendment to be included in the -$249. The other insistence, predicated upon the failure of the bill to show who ivas in possession of the land at the date of foreclosure or the filing of the bill, is also ydthout merit. It is shown that complainant was one of the.minor children at the date of the death of his father, the mortgagor, and that his father was residing upon the land at the date of his death, which occurred during the year the foreclosure sale was had; that it was his homestead and comprised all the lands owned by him. It is true it is not averred upon what day during the year 1903 the father died. His' death may have occurred after the foreclosure, and if it did this would show that complainant was in possession with his mother and the other children of the land; and, as against the motion, Ave would be, perhaps, authorized to so hold. But, be this.as it may, if this be a defect, it is such an one as may he cured by amendment; and clearly, if complainant was in possession of the land at the date of the foreclosure, there was no duty upon him to surrender that possession as a condition precedent to redemption unless a demand was made upon him to do so by the purchaser or his vendee. Section 3506 of the Code of 1896. The motion vas properly overruled. Affirmed. Weakley, O. J., and Simpson and Anderson, JJ., concur.