Couthway v. Berghaus , 25 Ala. 393 ( 1854 )

CHILTON, C. J. —

In Thomason v. Scales, 12 Ala. 309, it was held, that to entitle the creditor to redeem the land of his debtor under the act of 1842, “to prevent the sacrifice of real estate,” he must have ascertained the bona fides of his demand by obtaining a judgment. A judgment was obtained by the appellant in this case against Gage, her alleged debtor; but it was by his confession ; and the question is, was this such a judicial ascertainment of the debt, as authorized her to demand a redemption.

It is argued that, if such right may be claimed under a judgment of this character, a wide door would be opened for fraud and collusion; and that to constitute a Iona fide creditor, there must be a judgment after a contestation. Perhaps it would be impossible, after the greatest circumspection and caution, effectually to provide against fraud in all cases. W ere we to hold that the record of the judgment must show a contest between the parties, even then such contest might be feigned or collusive. And what evidence will suffice to show such contest? a demurrer, or plea, or judgment on the verdict of a jury ? Every one knows the record may so speak, and yet the judgment be rendered apon a colorable or fraudulent demand. The parties may have so arranged as to build up the demand, and to invest it with these apparent solemnities, as a better shield against the exposure of their fraud. It is very apparent then, that the evidence which a record would ordinarily furnish of a contest, would afford very little additional proof of the bona fides of a demand, beyond what a judgment by confession woidd exhibit; both are conclusive as against a defendant in the judgment, but neither of them has this effect as against third persons who are strangers to it. They are alike conclusive evidence that such judgments exist; but whether founded on a Iona fide claim — in other words, whether they are hot fraudulent as against third persons, is a question which strangers may discuss.

The annotators upon Phillips’ Evidence (vol. 3, pp. 820, 821) have clearly stated the distinction which we wish to illustrate. “ A verdict or judgment,” they say, “ is offered, either to establish the mere fact of its own rendition, and those legal consequences which result from the fact; or it is offered with a view to a collateral purpose, — that is, to prove not only the fact that such verdict or judgment has been rendered, and so let in all the legal consequences; but as a medium of proving some fact as found by the verdict, or upon whose supposed existence the judgment is based." Eor the first named purpose, that is, to prove the judgment itself as a fact and its legal consequences, the record of it is admissible against strangers, but not as proof of any fact on which it is based. See, also,-Phillips’ Ev., (0. & H. notes,) vol. 3, pp. 821-2,-3, notes 582,-3.

The appellant being a judgment creditor of G-age, one of the consequences resulting from the judgment is, that she is ■entitled, by reason of this record evidence, to make application to redeem his lands, which are subject to redemption ; and if the appellee, seeing that Gage is concluded by the judgment, is unwilling to repose upon this record evidence, he may put the complainant upon the proof of the existence and bona fides of her demand, — may, at his peril, refuse to yield to it, and compel her to resort to chancery, where he can contest with her the justness of her claim. We think we might, wkfih the same propriety, and for equally strong reasons, hfold that a judgment by confession or default constitutes no lien, — that a plaintiff in an execution issued upon ’A should not be permitted to try the right to property so as to subject it for its satisfaction ; or that, upon a return of “no property found,” the plaintiff might not resort to equity to subject the equitable estate of the debtor in the hands of a trustee. It does not follow, however, that because Mrs. Couthway has a judgment, which she must have before she can redeem, she is a bona fide creditor. The statute (Clay’s Digest, 502,-3) does not confer the right of redemption upon judgment creditors merely : they must be bo?ia fide creditors who have judgments. The reasons, in part, no doubt, upon which the courts have held a judgment was necessary, were to cut off disputes and uncertainty as to the amount which the debtor owed to the creditor, and to protect the latter from having his own right to redeem embarrassed by claims which he never acknowledged. Be this as it may, we think the fact that the judgment was confessed does not cut off the appellant’s right to redeem.

The case of Hooper v. Pair, in 3 Port. 401, is not opposed to the views we have expressed. The claimant, it was very properly held in that case, could not controvert the bona fides of the judgment of the plaintiff in execution, because such contest was without the issue; and as to the judgment under which the claimant made title, it was held no evidence of the existence of a demand against the defendant in execution in favor of the claimant, as the plaintiff in execution was neither a party nor privy to it. True, some stress is laid by the learned judge who delivered the opinion upon the fact, that it was by default, &c.; but we apprehend the same result would have followed, however much it had been contested, as the plaintiff in execution should not have been held bound by a contest to which he was a total stranger.

But it is insisted by the counsel for the appellee, that the bill is defective, in that it fails to show when the debt accrued, or that the complainant was a bona fide creditor when Berghaus bought the land. The charge is, that “on the first day of July, 1850, oratrix, by the consideration of the City Court of Mobile, recovered a judgment against Aaron Gage, being a bona fide creditor, for the sum of eleven hundred and thirty-six dollars and sixty-six cents,” &c; and an exemplification of the record of recovery is set forth as an exhibit to the bill, from which it appears that the judgment was on a note bearing date anterior to the purchase by the appellee.— This, though not very formal, we think is sufficient. It is not necessary that the complainant should go into the particulars of the consideration of the note upon which the judgment was founded. The charge that it is a bona fide indebtedness, with an exhibit of the evidence of it, is all that is required. If bona fide, it existed when the evidence of the demand was given, and this was before the sale.

That the judgment was obtained after the sale, but before the expiration of the time for redeeming, as fixed by the statute, was held, in Pollard v. Taylor, 13 Ala. 604, to be sufficient to authorize such creditor to redeem.

But, the counsel for the appellees say, the judgment not being evidence of a bona fide claim or demand, there is no proof in the record to show that Mrs. Couthway was a bona fide creditor. The proof of this fact is found in the admission of Berghaus to Barkaloo, on the 4th of June, 1852, that “ he had satisfied himself that the judgment was good, and the right to redeem under it existed.” The answer does not directly deny indebtedness on the part of Gage to Mrs. Couthway, but merely that the respondent is ignorant respecting it. The feeble denials of the answer, weakened as it is by partial concessions of the right to redeem, and the averment that the defendant offered to pay the amount of complainant’s judgment, coupled with the proof made by Barkaloo, we think sufficient to justify the conclusion that the demand exists as it appears of record, and to dispense •with the necessity for further proof.

Again.; objection is made to the tender, first, because it was not made by the proper person. It is said the appellant herself, or. Chamberlain, her attorney in fact, should have made it: whereas it was made by one Adams. Wc recognize fully the rule, that an agent, without authority given him by his constituent in that behalf, cannot delegate his authority and powers to another. But this does not imply that Chamberlain must carry the money, instead of sending it, or that he, instead of some one else, must count down the money. The tender was substantially made by Chamberlain, through Ms letter to Berghaus, borne by Adams, who took the money and offered it to him ; and it is clear from the record that the appellee so understood it; for he had an interview, and also wrote to Mr. Chamberlain in regard to it, recognizing him as the actor in the matter. Besides, he made no objection to the want of authority in Mr. Adams at the time. His reasons for declining the redemption were, that the amount tendered ($6100) was not enough, and that he was not satisfied that Mrs. Couthway was a Iona fide creditor. It would be unjust to allow him to spring other objections afterwards, which could readily have been remedied at the time, and doubtless would have been but for the implied waiver. It is upon the same principle that the tender of bank notes is sufficient, unless objection be made to them for that reason.— In this case, no specific objection of the kind was made, and the party might fairly imply that the same was waived.

It is further urged by the counsel for the appellee, that the tender was made to the wrong person — that it should have been made to Mrs. Kline. It is admitted, that she was a mere trustee, without any interest in the land, and that she holds the title to the same for Berghaus, who lias the possession, and is in perception of the rents and profits, and can control the title. Under these circumstances, she being a non-resident, we think it clear the appellant was not bound to go to her place of residence, at a great distance beyond the State, to make a tender to her. The money was not due to her, but to the party who paid it, and to whom the tender was made. It appears that the appellant was content to receive the conveyance from him as her agent, which agency he did not then deny ; and it did not lie with him to say, I have caused the legal title to be lodged in a person a thousand miles distant, it may be; you must search for her and get the title, or you cannot redeem. If such embarrassments could be thrown in the way of redemption, it would be rendered, in many cases, useless ; and as the land, by reason of this statute, generally sells for less at the first sale than it would otherwise command, that which the act. was designed to prevent — the sacrifice of it — would be the result.

As to the objection, that it was not proposed that the conveyance upon redeeming was to be at Mrs. Couthway’s cost, it is only necessary to say, that Mr. Adams proves the conveyance was to be furnished by him, he acting at the request of Mr. Chamberlain.

It is further argued by the appellee’s counsel, that he had sis months, after the tender, to make his election whether to convey or pay the sum offered to be credited by the appellant, and that the bili was prematurely filed before the expiration of that period. Such is not the proper construction of the statute. His election must be made in a reasonable time, and he must notify the opposite party of his determination and tender a compliance. Merely saying that he should pay the sum bid'and retain the land, without offering to pay, or securing it as required by the statute, amounts to nothing.— But if he had made a tender, he does not continue it in his answer, but seeks to bar the complainant’s right, leaving the land as it was.

Whether the amount tendered was sufficient to refund the purchase money, with the per cent, allowed by law, and whether the rents and profits will leave a balance due for improvements, are questions which can be settled upon a reference. The amount which the appellee paid to extinguish the incumbrance of Stewart & Easton, with lawful interest, should be refunded him, as on the payment he became subro-gated to the rights of the mortgagees, and should not be divested of the lien, if it constituted a prior incumbrance, without being refunded the amount paid and interest.

Upon the case presented, we think the decree of the chancellor erroneous ; it is consequently reversed, and the cause will be remanded, that a decree may be rendered in conformity with the views expressed in this opinion.