Jones v. Matkin , 118 Ala. 341 ( 1897 )

HARALSON, J.

It is manifest from the statement of the facts of this case, that the bill ivas not filed for the purpose of redeeming under the statute, nor to redeem under the general principles of equity,, by dis-affirming the foreclosure of the mortgage, because the representative of the mortgagee purchased at his own sale. Its allegations and prayer are not sufficient on either of these theories. The bill is filed on another and different theory. Indeed, it recognizes the validity of the foreclosure, and does not seek to set it aside.

In Lehman, Durr & Co. v. Moore, 93 Ala. 186, the court held, in construction of section 1879 of the Code of 1886, in reference to the redemption of lands sold under execution, or by virtue of any decree in chancery, or under any deed of trust or power of sale in a mortgage, that the right to redeem lands sold under a mortgage, was not conferred on the assignee of the equity of redemption, or purchaser from the mortgagor. The legislature, by act approved February 27th, 1889, (Acts 1888-89, p. 764; Code of 1896, §3505), amended said section, so as to make it read, as to those entitled to redeem lands, that “the same may be redeemed by the debtor, his vendee, junior mortgagee, or assignee of the equity of redemption, from the purchaser or his vendee/- etc. This amendatory act, as was held in the case above cited, did not apply to mortgages executed before the day of its approval, although the sale was made afterwards.

Mrs. Matkin’s mortgage, under which the lands in question were sold, was executed before the date of the approval of said act; and it has been urged by the appellees, that the complainant and her brother, Wm. B. Matkin, to whom Mrs. Matkin conveyed the land before the foreclosure sale under her mortgage, did not have the right of redemption under -the statute. But this contention is untenable. As far back at least as the Code of 1852 (section 2125), in the same'chapter of that 'and subsequent Codes making provisions for a statutory right of redemption, the provision appears, that “when land has been conveyed by a parent to a child, and sold as the property of the parent, the child has the right to redeem within the time, and upon the terms as provided in this chapter.” — Code of 1886, §1888; Code of 1896, ]§3515.

It is undeniable, then, that Wm. B. Matkin, after the foreclosure, had the right to exercise the statutory right of redemption of said lands by paying the entire mortgage debt, and redeeeming the whole of the premises sold under the mortgage. — 2 Jones on Mort., §1055; 3 Pom. Eq. Jur., §1220; Rapier v. Gulf City Paper Co., 64 Ala. 330; Butts v. Broughton, 72 Ala. 294; Holden v. Rison, 77 Ala. 515; Ohmer v. Boyer, 89 Ala. 279.

Mr. Pomeroy, laying dowm the rule in respect to redemption of real estate sold under mortgage, by one having a subsequent interest in the premises, says: “In general, wrhen any person having a subsequent interest in the premises, and wrho is, therefore, entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lein so far as may be necessary for his owm benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his owm equitable protection.” — 3 Pomeroy Eq. Jur., §1212. This right extends to any person interested in the premises, such as co-owmers, life, tenants, reversioners, remaindermen and the like, and the only right of such redemptioner is to enforce the mortgage upon the estates of other interested parties as security for obtaining subsequent contribution. — 3 Pom. Eq. Jur., §§1212, 1213, 1220, and 1221.

Again, the same author says: “Any such person who redeems, no matter how small a portion of the premises, he may owm, or how partial may be his interest, must redeem the entire mortgage, by paying the whole mortgage debt. The doctrine of contribution among all those wdio are interested in having the mortgage redeemed, in order to refund the redemptor the excess of his payment over and above his own proportionate share, and the doctrine of equitable assignment in order to secure such contribution, are the efficient means by which equity completely and most beautifully works out perfect justice and equality of burden, under these circumstances. The right of contribution arises only after a redemption, and necessarily depends upon the equities subsisting between all those persons who hare an interest in the premises subject to the mortgage, and who, therefore, have a common, but not necessarily equal, interest in being relieved from the burden of the mortgage.” — Ib. §1221; 2 Jones on Mort., | §1055, 1063; Ohmer v. Boyer, 89 Ala. 273, 280.

In this case, then, when Wm. B. Matkin redeemed the lands, he held the mortgage as an equitable assignee, for his own protection, and for the benefit of the complainant, who, if she asserted any rights thereunder, Avas bound to make equitable contribution to the redemptor. This she proposed to do, but the privilege Avas denied her. He could have forced her in equity to make such contribution, or stand foreclosed of her equitable rights of contribution.- — 3 Pom. .Eq. Jur., §1222; 2 Jones on Mort., §1063. If he refuses to allow her to contribute, the remedy wras equally open to her, to be alloAved to redeem her lands from him by making equitable contribution. Her bill under the principles aboAre announced Avas Avell filed, and the demurrer to it should have been overruled.

It is not disputed, that McAnnelly & Brother are entitled to their mortgage security- on all the land covered by their mortgage, for the payment, without impairment of the same, of t'he notes therein mentioned. The money loaned to them by Wm. B. Matkin Avas used by him to redeem the lands from McDonald, and inured, in the redemption from McDonald, to the benefit of complainant as Avell as himself.

The court should, on final hearing, if the facts as averred in the bill are proved, ascertain by its decree, in accordance Avith the prayer, what part of said mortgage debt is a just charge on complainant’s part of the land, and she should be alloAved to pay the same to Mc-Annelly & Brother on their mortgage debt that has matured, or as it may mature. For any part thereof that remains unpaid, on the maturity of their mortgage, their right to foreclose the same, on the. entire land, should remain unimpaired, but they should first sell the Wm. B. Matkin part of said land, and if any part of their mortgage debt shall thereafter remain unpaid, then, the lands of complainant for the payment of such balance should be sold. When complainant has paid her part of such mortgage debt to whom it may be due and owing, — the whole debt having been discharged, — she will be entitled to a conveyance., from Wm. B. Matkin and wife to her part of said lands. If, in order to protect her interests, she should pay more than her equitable share of said debt, in discharge of the same, the court, having the. parties and the subject matter before it, may enforce equities between her and said Wm. B. Matkin and wife, as they may in that event appear.

Reversed and remanded.