Butler v. Hannah , 103 Ala. 481 ( 1893 )

COLEMAN, J.

Laura B: Hannah, as the owner and holder of a judgment against Andrew J. Hannah, filed the present bill to redeem certain lands, which had been sold under execution issued upon a judgment recovered by a different creditor against the said Andrew J. Hannah, and which lands were purchased by James E. Butler. The bill was filed within two years, and we hold the averments are sufficient to entitle complainant to relief, if sustained by the pi’oof. The statute provides the terms upon which one judgment creditor may redeem lands from a purchaser at execution sale, or'from another judgment creditor. In construing the statute, this court has uniformly held, that the redemptioner must tender to the purchaser or his vendee the purchase money and ten per cent, per annum thereon and all lawful charges, and unless this is done before the filing of a bill to redeem, or some sufficient reason for not making the tender is shown, the redemptioner is not entitled to relief. — Beebe v. Buxton, 99 Ala. 117 ; Lehman, Durr & Co. v. Moore, 93 Ala. 186. The bill avers distinctly that the tender was made to James E. Butler, and the answer denies with equal emphasis that any money whatever was tendered. Andrew J. Hannah, the husband of the complainant, was the only witness examined to prove the tender. He swears positively to a tender to James E. Butler, in gold coin, of the proper amount, and ten per cent, per annum,. His evidence sustains the averments of the bill. James E. Butler testified positively that no such tender was made, that “neither A. J. Hannah nor Laura B. Hannah, nor no one acting for them” tendered him any money before the bill was filed. He says A,. J. Hannah capae to him with a paper and wanted him to sign an acknowledgment, that a legal tender had been made, ‘1 which witness refused to do, as he had made no tender of any cash.” The evidence is irreconcilable, and there is nothing that would justify a reasonable conclusion that the complainant had made good the averment of a tender. It would appear from the testimony of both these witnesses, that a third person was present as a witness to the transaction between them, and strange to say, this person was not examined by either party, nor any reason given why he was not examined.

The case is not the same as when a court has a witness examined orally, in its presence, and can consider the manner, tone and appearance of the witness during his examination, in weighing the evidence. In the case at bar both witnesses were examined by deposition. This court has all the means of weighing the testimony possessed by the chancery court, and after weighing the evidence, we are not satisfied that a legal tender was made.

It may be, as argued by the appellee, that the purchaser. denied the right of complainant to redeem and would have refused a tender if made. We do not know this. He remained at his place of business, was accessible, and it seems did not avoid giving to complainant the opportunity to make a tender. He testified that he refused to acknowledge a tender, because no cash was in fact tendered.

There are other questions argued, but our conclusion upon the question of. a tender renders it unnecessary to consider them, '.

Reversed and remanded.

Brickell, O. J., not sitting.