Paulling v. Meade , 23 Ala. 505 ( 1853 )

.LIGON, J.

Before proceeding to consider the case really made by the bill, it is best to remark, perhaps, that it is not in any aspect a bill to redeem under the mortgage from McNaughton to Baron, Meade & Co., as it is wholly deficient in the allegations and parties necessary to make it such. All the allegations which it contains with reference to this matter will, therefore, remain wholly unconsidered, and we will address ourselves to the case as one arising under our statute to prevent the sacrifice of real estate.

Under that act, two classes of persons are privileged to redeem, viz., the defendant in execution, who delivers possession without suit, and bona fide creditors. The former of these can never be mistaken ; and the latter, by previous decisions of this court, are held to be composed of all creditors who reduce their claims to judgments before the time for redemption has expired.—Clay’s Digest 502 §§ 1, 2; Scales v. Thomason, 12 Ala. 309.

In both these characters the complainant, by his bill, claims to stand. He claims to represent McNaughton, the defendant in execution, by virtue of McNaugh ton’s conveyance to him of his equity of redemption in the lands in dispute ; and to occupy the place of a creditor, by virtue of his purchase of the outstanding unsatisfied judgments under which the lands were sold by the sheriff at the time Meade, the defendant, became the purchaser.

That the judgment debtor has the right to sell his equity of redemption, cannot be questioned; and when sold, the purchaser becomes substituted to all the rights and remedies which the statute confers on the debtor himself, and is subjected to all the duties which by law devolved on his vendor. In order to entitle the execution debtor to demand a reconveyance from the purchaser, the law makes it his duty to surrender the possession of the premises to such purchaser without suit, to tender him the amount of his bid, with ten per cent, per annum on the same to the time of the tender, with all expenses incurred, to pay the expenses of reconveyance, and to make such tender within two years from the time of sale. — Clay’s Digest 502-3 § § 1, 2, 5; Sanford v. Ochtalomi, at this present term. A deficiency in either of these respects, unless satisfactorily excused by the bill, will be fatal to his cause ; and as they are all necessary to entitle him to relief, they must be set forth in the bill itself.—Sanford v. Ochtalomi, supra.

Let us test this portion of the complainant’s bill by the'se rules. The allegation with regard to the surrender of possession by McNaughton, the defendant in execution, is in these words; “ that after he (complainant) became the owner of said judgment, and equity or right of redemption, McNaughton had left it,” (the land,) and complainant took possession of it, as he supposed, and insists he had a right to do. The long established and well settled rule of pleading is, that tho allegations of the bill must always be taken most strongly against the pleader ; but it scarcely requires the aid of this rule to interpret this allegation as one of continued possession by McNaughton and the complainant, from the time of the sale to tho time of filing the bill, and as it is not alleged that this possession was with the consent of the purchaser, we can but regard it as otherwise.— The bill sets out the sale as occurring on the first Monday in January, 1849, and the purchase of the equity of redemption by complainant as happening on the 14th of July of the same year ; and no effort appears to have been made by the complainant to effect the redemption, until tho 29th of October, 1850.— Thus, for nearly two years, McNaughton, and complainant under him, withheld tho possession of the land from the purchaser, enjoying the rents and profits, without making any effort whatever to entitle themselves to such possession; and without surrendering the possession to the purchaser without suit, so as to entitle them, under the statute, to the privilege of redeeming.— These facts appear upon the face of tho bill. At the threslihold the bill is found without equity, so far as the complainant claims through McNaughton, the judgment debtor.

But it is contended, that the fact that the defendant in execution did surrender the premises sold without suit, to the purchaser, need not appear in the bill, and that a failure to deliver such possession is wholly a matter of defence. We do not so regard it. Before the defendant in execution is entitled to redeem, he is required to deliver the possession, without suit, to the purchaser. It is as important that he should do this, as that he should tender the purchase money with the interest required by statute. In fact, it is necessary to his right, and whatever is so necessary must be alleged in the bill. The language of the statute, and the equity of such cases, both require that the purchaser should have possession of the lands, that he may enjoy the rents and profits in the meantime, since the sum required to be tendered by the statute embraces only ■the purchase money with ten per cent, interest, and it could not be tolerated that the defendant in execution should have the rents, when they often amount in value to a much larger sum than the purchase money and the interest required, and almost invariably to a larger amount than the ten per cent, interest.

It is said, however, that the complainant occupies the position of a creditor, and in that character has made out a case for relief. Although this fact-is set forth in the bill, yet there aré no allegations contained in it which seem to us to seek relief in that capacity. So far as they go, they appear to place the complainant in the relation of assignee of the right of redemption from McNaughton. There is no allegation that the complainant offered to refund to Meade, the purchaser, the sum bid at the sheriff’s sale, with ten per cent, interest, and to credit the judgment which he held with an additional ten per cent., or a larger sum. This is required of a creditor by the statute, and an offer to do less will not authorize him to redeem. Nothing short of an offer of all that is required by the statute, will satisfy the demands of the law.—Clay’s Digest 502 § 2; Smith v. Anders, 21 Ala. 782.

The views already taken of this case are fully decisive of it, and we deem it unnecessary to consider the other points made in the argument.

Let the decree be affirmed.