Beatty v. Brown , 101 Ala. 695 ( 1893 )

McCLELLAN, J.

A bill to effectuate a mortgagor’s statutory right of redemption, which right exists, of course, only after foreclosure, is without equity unless it avers the tender which the statute requires to be made to the purchaser or his vendee. This results from the terms of the statute itself (Code, § 1881), as has been declared by this court in the .following among other cases : Paulling v. Meade, 23 Ala. 505; Spoor v. Phillips, 27 Ala. 193; Carlin v. Jones, 55 Ala. 624; Stocks v. Young, 67 Ala. 341; Lehman, Durr & Co. v. Collins, 69 Ala. 127; Pryor v. Hollinger, 88 Ala. 405, 6 So. Rep. 760; Lehman, Durr & Co. v. Moore, 93 Ala. 186, 9 So. Rep. 590; Beebe v. Buxton, 99 Ala. 117, 12 So. Rep. 567. In no case has it been decided that tender and an avennent of the fact are not essential, though there may possibly be a dictum in one of the cases to that effect; and there are one or two cases which, upon casual reading, might seem to support that view, but these will on examination be found to involve bills to assert and effectuate the equity of redemption, which exists only, of course, before foreclosure.

As respects the purchase money bid and paid for the land at the foreclosure sale, and the ten per cent, per annum thereon, a tender roust in all cases be made, alleged and proved; and such tender when practicable must be made to the purchaser or his vendee before bill is filed. If this is not done, the bill must allege a valid and sufficient excuse for the complainant’s failure to do it. Where such excuse exists and is alleged, the bill must go further and allege a present tender by payment into court and must be accompanied by a delivery of the money to the register of the court. Thus in Beebe v. Buxton, supra, it is said : “The statute not specifically prescribing the mode in which the tender must be made, the absence of the purchaser or his vendee from the State is recognized as an excuse for the failure to make tender to him in person, and as occasioning a necessity to file a bill for redemption in which the tender may be made. To the sufficiency of a tender made in this way, the payment of the money into court is essential.— Spoor v. Phillips, 27 Ala. 193; Trimble v. Williamson, 49 Ala. 525; Alexander v. Caldwell, 61 Ala. 543; Caldwell v Smith, 77 Ala. 157; Stocks v. Young, 67 Ala. 341. * * * As the statute clearly makes a payment or a tender a condition to the exercise of the right, we think that such payment or tender must be made to the purchaser or his vendee in person, or, when that is not practicable, by the deposit of the money in court on the filing of the bill to redeem.” The statute takes no account of the possible ignorance of the debtor as to the amount of purchase money to be repaid. It, to the contrary, proceeds on the by no means unreasonable assumption that he will always know or be able to advise himself of the price at which his property has been sold; and it is absolute and unequivocal in its requirement that such price and a certain per centum thereon shall be refunded or tendered as a condition to the exercise of the.right it gives. It is equally clear in its terms as to the lawful charges required to be paid or tendered; but a case might possibly exist, though the present is not one of them, where on account of the purchaser’s absence from the State, and the debtor’s consequent inability to see or confer with him, a lawful claim constituting a charge on the land might be held by the purchaser without the knowledge of the debtor, and, in such case, it may be that a bill to redeem, averring a valid excuse for failing to pay or tender before suit, tendering in its allegations, accompanied by payment into court, the purchase money and ten per cent, per annum thereon, and offering to pay all charges that might be found to exist, would be .sufficient. This, however, we do nob decide. And with respect to any claim the purchaser may have for permanent improvements : Inasmuch as the amount of such claim — or rather the value of such improvements where the claim in fact exists — must be agreed on or determined by arbitration (Code, § 1889), the complainant, where he had had no opportunity to treat with the purchaser, could not know the amount of this item and need only, we should say, offer in his bill to pay it upon ascertainment. This question is not in the present case; and we have adverted to it and the matter next preceding only to make it appear that it is not here decided that where for good cause tender is not made before suit, the tender averred in the bill by payment into court should embrace in all cases 1 awful charges and the value of permanent improvements.

The present bill is fatally defective under the foregoing principles, wholly regardless of whether it sets forth a good excuse for a failure of tender before suit or not. It in itself makes no tender by alleging.that money is paid into court, and no money was paid into court. For this, in -any view, there can be no excuse.

This suffices to sustain the decree of dismissal entered below, and we will not extend this opinion by a discussion of the facts put forward to excuse failure of tender before suit further than to say that they are to our minds manifestly insufficient, a conclusion which must ensue from the absolute requirement that the purchase money, interest and lawful charges must be paid or tendered, admitting, as it does, of no inquiry having in view the reduction of the amount to be so paid or tendered to the extent of cross demands of the mortgagor against—not the purchaser with whom alone he is now dealing—but the mortgagee.

Affirmed.