Barringer v. Burke , 21 Ala. 765 ( 1852 )

PHELAN, J.

— If the complainant desired to bring to the view of the court the facts connected with the reversal of the first judgment of Burke against Dunlap, and the rendition of the second, he could only do so by supplemental bill; since this is new matter, relating to the case made by the original bill, arising subsequent to the filing of that bill, and, therefore, not proper to be added by way of amendment of the original bill. Story’s Eq. Pl., 268, et seq.; Mitford’s, 49; Walker v. Hallett, 1 Ala., 379. The effect, however, of the new matter upon the case made by the original bill, remains to be considered.

The whole case then, as presented by complainant, Burke, is in brief as follows: Within the two years limited by law he offered to redeem the land purchased by Mrs. McMillan, and sold by ber to Barringer in trust for Mrs. Dunlap, in virtue of a judgment which he then held against James M. Dunlap, the defendant in execution, making said offer to Barrin-ger, the trustee, and not to Mrs. Dunlap, the cestui que trust; after this offer to redeem, and after the filing of the original bill, the judgment of Burke against J. M. Dunlap was taken to the Supreme Court, on writ of error, by Dunlap, and reversed ; subsequently to this a new action was brought by Burke against Dunlap, upon the same cause of action, and another judgment recovered before the final hearing in the court below.

Two questions present themselves: 1. Should the offer to redeem have been made to Barringer, who held the legal title, or to Mrs. Dunlap, the cestui que trust? 2. Will an offer by a creditor who holds a judgment at the time, which is subsequently reversed, but who afterwards brings a new suit on the same cause of action, and recovers a new judgment before the hearing in chancery, be held good, to entitle the party making the offer to the provisions of the statute, giving to creditors the right to redeem land which has been sold under execution ?

When Barringer took the legal title in trust for the separate use of Mrs. Dunlap, who was then a married woman, he took it subject to all the conditions to which the law subjected lands “ sold under execution.” One condition was, to allow any Iona fide creditor of James M. Dunlap, within two years from the time of the execution sale, to redeem the land that had been sold, by paying the amount bid at the execution sale, with ten per cent, interest per annum, and offering to credit the debtor with ton per cent, or more on the purchase money bid at said sale, and thereupon to convey, &c., to such creditor. The trustee in such a case is the only person that the law regards as having power to convey the legal title. Every trustee is bound to protect the interests of his cestui que trust, and in order to do this he is supposed to consult with him freely upon all matters touching his interest, before he does any act by which the cestui que trust may be affected. In doing what the law will compel him to do, he always consults the best interests of his cestui que trust, and avoids costs and trouble. The statute says, “ on payment or tender,” &c., “ to the purchaser or any one claiming under such purchaser,” &c. Here the person having the beneficial interest is a married woman, who claims under the purchaser, Mrs. McMillan, not directly, but through a trustee, who holds the legal title from said purchaser. So far as the legal title is concerned, the trustee is in fact the person claiming from the purchaser; as, therefore, he is the only person who has power to convey when a tender is made, a tender to him is sufficient.

What would be the effect of a tender to the beneficiary in such a case, is a question not necessary now to be considered.

This bring us to the next question: Will a tender or offer to redeem, made while a judgment is in force, give a right to redeem after such judgment is reversed, if another judgment is recovered on the same cause of action, but after the expiration of the two years ?

• No creditor has a right to redeem, until he has reduced his demand to judgment; so that, although the statute says any “ bona fide creditor” shall have the right to redeem, the courts have decided, for very strong and satisfactory reasons, that this can only mean a bona fide judgment creditor. Scales v. Thomason, 12 Ala. Rep., 309; Pollard v. Taylor, 13 Ala. Rep., 604.

But a judgment which is reversed, is, in contemplation of law, of no more force or virtue than if it had never existed, so far as respects the rights of the plaintiff in that judgment. It is regarded as a mere nullity. Dupuy v. Roebuck, 7 Ala., 484 ; Simmons v. Price, 18 Ala., 405 ; 21 Ala., 337. Every interest which depends upon it, belonging to 'the party in whose favor it was rendered, must share its fate and fall with it. If then, the judgment by a reversal becomes as if it never had been, the offer to redeem, which was dependent on it, is to be regarded in like manner as if it never had been made.

The terms prescribed by this statute must be strictly pursued, to entitle the creditor to redeem. 10 Smedes & M., 521; 7 Humph., 281; 5 Gilman, 171. The offer must be made by a bona fide judgment creditor within the term of two years from the date of the execution sale, or he will be barred. Here an offer was made within the time, upon a judgment which was afterwards reversed. That judgment thereby became a nullity, and made tbe offer wbicb grew out of it a nullity also. No other offer was ever made, as tbe record shows, but a new judgment on tbe same cause of action was recovered after tbe expiration of tbe two years. This offer, under tbe judgment wbicb was reversed, could not survive tbe judgment out of wbicb it grew, so as to give a right to redeem under this latter j udgment; they cannot connect, as tbe one ceased to exist before tbe other bad an existence.

That judgments upon which offers to redeem under tbe statute may be made should be liable to reversal for three years, and tbe right to redeem be limited to two, involves this right of redemption in some uncertainty; but if tbe foregoing principles are sound, it is not for tbe courts to apply tbe remedy.

Under tbe view we take of tbe last question discussed, tbe complainant was not entitled to redeem under tbe proof in tbe cause; and bis bill, after tbe exhibition of the supplemental bill, should have been dismissed for want of equity.

Let tbe decree below be reversed, and a decree be rendered here dismissing tbe bill.