Hutchison v. Flowers

DOWDELL, C. J. The bill as amended, under the agreement of the parties, is confessedly one for statutory redemption of land sold under a mortgage. The real, and practically the only, question is whether or not the purchaser at the mortgage sale made a written demand for possession of the land on the mortgagor, the party in possession. After a careful consideration of the evidence, Ave concur in the finding-of the fact by the chancellor that the AA’riting, which was read by one Talbot, as the agent of the purchaser, to the complainant, purporting to he -a demand for possession, Avas not delivered to the complainant, nor a copy thereof delivered. And the question of la ay is: Did the reading merely of the Avriting, purporting to be a demand, to the party in possession, constitute a “written demand” under the statute? The present statute, section 5747 of the Code of 1907, reads as folloAYS: “The possession of the land must be delivered to the purchaser Avithin ten days after the sale thereof, by the debtor, -if in his possession, or of any one holding under him by privity of title, if in his possession, on written demand of the purchaser or his vendee.” Prior to this statute an oral or- verbal demand for possession was-sufficient. When we mdew the legislative history of the statutory right of redemption of land, the legislative intention of the importance of a Avritten demand, as incorporated in the present statute, is not to be overlooked. The right to redeem after foreclosure was first conferred on the mortgagor [654] by the Code of 1852, and in respect to the demand to be made by the purchaser for possession section 2117 of tire Code of 1852 reads as follows: “The possession of the land must be delivered to the purchaser within ten days after the sale thereof, by the debtor, if in his possession, on demand of the purchaser or his vendee.” The precise language of this section was carried forward in the Codes of 1867, 1876, and 1886. In the Code of 1896 the same language is used, with the following clause added: “Or of any one holding under him by privity of title, if in his possession.” Section 3506. So it is to be seen, from the history of the legislation, that the requirement of the demand to be in writing was first inserted in the Code of 1907- — after its having been The law for so many years that any demand, verbal or Avritten, Avas sufficient to cut off this important-right of redemption. The change in the law, therefore, is significant in meaning, and Avas intended for the benefit of the debtor, and to prevent, as far as possible, the fact of a demand from being a controverted question. We are also of the opinion that in complying Avith this requirement of the statute — that is, in making- a Avritten demand — the writing should be served upon the debtor, or the person in possession, by the delivery of the Avriting to such person, and that a mere reading of the writing, purporting to be a demand, by the purchaser To the debtor, is not sufficient. So.- far as the debtor is concerned, the reading by the purchaser of Avhat purports to be a Avritten demand for possession of the land is nothing more than the purchaser’s oral demand. We think, hoAvever, that the demand in Avriting might be Avaived;. but in such a case the waiver should be clear and unequivocal, since it involves the forfeiture [655] of so important a right by the debtor. And, since the debtor is not bound on a verbal or oral demand of possession to deliver, in order to prevent a forfeiture of his statutory right to redeem, a refusal to deliver possession on oral demand should not be construed into a waiver of a demand in writing. We concur in the views of the chancellor, both as to his conclusions of the law and as to the facts in the case. It results, therefore, that the decree appealed from must be affirmed. Affirmed. All the Justices concur.