Jones v. Burden , 20 Ala. 382 ( 1852 )

DABGAN, C. J.

The plaintiffs in error contend tbat their purchase was incomplete, notwithstanding tbe [Register executed to them a deed for the land, and tbat until tbe sale was confirmed by the chancellor, no judgment creditor of the mortgagor could file a bill to redeem. The solution of this question depends on this: at what point of time is tbe bidder to be considered tbe purchaser of real estate, sold under a decree of foreclosure ? In England be canúot be considered as tbe purchaser until the sale has been confirmed by tbe Chancellor ; for until then, tbe property is not at bis risk, and if it be destroyed in tbe interim between tbe bidding and the confirmation, be cannot be compelled to take it. 2 Dan. Ch. Pr. 1455; Ex Parte, Minor, 11 Vesey, 559; 13 Vesey, 517; Sugden on Vendors, vol. 1, 60.

But a practice has grown up in tbis State different from tbe practice in England. There tbe bid is reported by tbe master to the Court of Chancery, but tbe purchase money is not paid, nor any conveyance executed to tbe purchaser, until the report of the master is confirmed; but here the purchase money is paid to the Register at the time of the bidding, and he, unless directed by the order of sale to the contrary, then executes and delivers to the purchaser a deed for the premises. . This was the course pursued in the ease before us, and the purchasers obtained the possession of the land, and have occupied it ever since; and if we were to hold that it required a confirmation of the sale in order to render them purchasers, they have it in their power forever to prevent a judgment creditor of the mortgagor from redeeming, for they may decline to have the sale confirmed, and a judgment creditor has no power to compel them; and thus, from their own neglect in not' procuring a confirmation of their purchase, they would reap a benefit. We think that, under the practice which has grown up in this State, we must hold the purchase complete from the time the bidder pays the purchase money, and receives a conveyance from the Register. From that period the property is at his risk, and he could not repudiate the purchase for anything afterwards intervening.

It is not, however, to be inferred that we intend to hold that the bidder, by paying the amount bid and receiving a conveyance, obtains an indefeasible title without a confirmation ; for the practice is well settled, that the sale may be set aside before confirmation, for improprieties or irregularities in the sale. All that we intend to say is, that when the decree authorizes the Register to receive the amount bid, and make a conveyance, the bidder must be considered as the purchaser from the time he receives a deed. The case cited by the plaintiff’s counsel from 4 Humphreys, Wood, Abbot, et al. v. Morgan, Allison et al. it is true is opposed to this view, but the practice in Tennessee corresponds with the English practice in this particular; the purchase money is not paid, nor is the deed executed, until there has been a confirmation of the sale; hence we do not consider that case as an authority in point. Nor can we assimilate sales under the decrees of Courts of Chancery, to sales by commissioners acting under the authority of the Orphans Court, for in such cases no conveyance is directed to be made until the report of the commissioners has been returned. The commissioners (unless, perhaps, they are otherwise directed by the order of sale) have only the authority to sell the land, and not the authority to execute a conveyance; the bidder, therefore, at such a sale, does not obtain the legal title until the commissioners report the sale to the Orphans’ Court, and receive from that court the authority to convey, Bonner v. Greenlee’s Heirs, 6 Ala. 411. But under tbe chancery practice that bas grown up in this State, and from wbicb we do not feel at liberty to depart, tbe Begister may execute a conveyance upon receiving tbe amount bid, before be reports tbe sale to tbe Court of Chancery, and from tbe time tbe bidder receives bis deed, tbe property is at bis risk, and be cannot repudiate bis contract; from that time, therefore, be must be considered as tbe purchaser, invested with tbe legal title, notwithstanding bis title is liable to be divested for irregularities in tbe sale.

It follows from this view, that a judgment creditor may redeem before the sale is confirmed, for tbe purchaser is not compelled to have it confirmed, and may enjoy tbe property without a confirmation. Tbe only effect that tbe confirmation can have under our practice is, to render tbe title of tbe purchaser indefeasible, that is, not liable to be set aside by tbe Chancellor, but be must be considered as tbe purchaser from tbe date of bis conveyance.

Tbe only remaining question is, whether tbe offer of Jones to credit tbe mortgage debt with tbe amount proposed to be advanced by tbe complainant on tbe amount of tbe sale, deprives tbe complainant of his right to redeem. Tbe decisions of this court have settled tbe question that a bonafide creditor, within tbe meaning of tbe act of 1842, is a judgment creditor; and although there may be an actual debt due to one, be cannot redeem tbe land of bis debtor that bas been sold under judicial process, without showing that bis debt bas been reduced to judgment. Tbe Branch Bank at Mobile v. Furness et al. 12 Ala. 367; Thomason v. Seales, ib. 309; Pollard v. Taylor, 13 Ala. 604.

From this it must follow, that a purchaser who would prevent a redemption, by crediting tbe debtor with tbe amount proposed to be advanced, must also be a judgment creditor. We cannot construe tbe term bona fide creditor, as used in tbe second section of tbe act of 1842, to mean a judgment credit- or, and tbe same term in tbe third section to mean a creditor at large, or one who bas an actual debt, whether reduced to judgment or not. Tbe Legislature evidently used tbe words in tbe same sense in both sections of tbe act, and we must construe them to mean tbe same, whether found in tbe second or third, section.

Nor can tbe objection avail tbe plaintiffs, that tbe death of Mayrant destroyed tbe lien of tbe complainant’s judgment; for, notwithstanding tbe lien may be lost, tbe judgment remains, and tbe complainant is a judgment creditor.

We can see no error in tbe decree, and it must be affirmed.