Harden v. Collins ( 1903 )

MoCLELLAN, C. j.

Action of unlawful detainer brought by M. A. Collins against Harden before a justice of the peace, and removed-on defendant’s'petition into the circuit court, under the provisions of sections 2147-8 of the Code. By the terms of section 2149 the case was determinable in the circuit court on the inquiry of title -vol non of the plaintiff. If the plaintiff had the right to redeem and before suit brought had made a sufficient tender for that purpose to the defendant, title to the land was vested in her by the force of section 3507 of the Code, and upon that title she was entitled to recover. If she did not fail for ten days after demand upon her to surrender possesion to the purchaser at the foreclosure sale, the defendant, she did have the right to redeem, though her tenant in common and joint mortgagor did fail and refuse to surrender possession for .ten days after demand upon him. A demand upon one tenant in common is not a demand upon the other in this connection, and imposes no duty of surrendering possession upon such other. And it is not of consequence that the tenant in common upon whom the demand is made happens to be the husband of the tenant upon whom nb demand is made. If the land belonged solely and severally to the husband and the mortgage was executed by him as sole grantor, it would be his duty under section 3506 of the Code, upon demand for possession to remove his family, including, of course, his wife, from the premises within the prescribed period, (Nelms v. Kennon, 88 Ala. 329) ; but the fact that his tenant in common is his wife, gives, him no power over her as a tenant in common, and neither his acts nor his omissions can effect her estate in the land nor her rights under the statute after foreclosure of a mortgage executed upon it by him and her as grantors. If, as there is a tendency of the evidence to allow, no demand for possession was made upon her, she was in no default nor lost her right to redeem by failing for any length of time to deliver possession to the purchaser, and her right of redemption, if it existed at all, was the right to redeem the land in its entirety , not merely her undivided interest in it. — Lehman, Durr & Co. v. Moore, 93 Ala. 186. Assuming, as the jury had a right to find, that the plaintiff had a ri.vht to redeem, was her effort to that end efficacious? Was her tender sufficient? It is alleged, and the evidence, without conflict, proves, that she tendered the purchaser the full amount bid and paid by him at the foreclosure sale and ten per cent, per annum themm. It is also alleged that she offered to pay him in addition to this all lawful charges. Plaintiff’s evidence tends to support this averment in substance. It goes to show that she offered to leave the ascertainment of the amount of-lawful charges, that is in this instance, the value of defendant’s permanent improvements upon the land, to disinterested parties, and to pay the amount ascertained by them, and that defendant declined the proposition absolutely. This flat declination of the purchaser rendered it unnecessary for the plaintiff to appoint a referee to ascertain the value of the permanent improvements, as such appointment would have been a vain and useless thing to do; and if the facts were, as this evidence tends to show them to be, in our opinion, the tender was sufficient and operated a revestiture of the title in the plaintiff, with no liability on her in respect of permanent improvements. But, on the other hand, the evidence for the defendant went to show that the only offer made by or on behalf of the plaintiff as to paying for permanent improvements, was to this effect: That if the defendant would pay three dollars per acre rent for the land, the plaintiff would leave the ascertainment of the permanent improvements to disinterested persons, and pay the amount found by them. There is no warrant in the statute for such a conditional offer. The plaintiff had no right to inject such a condition into the tender or offer, and with it injected the purchaser was under no duty to accept the tender and offer.' — Prichard v. Sweeney, 109 Ala. 651. If the facts were in line with this evidence the tender was insufficient and inefficacious to invest title in the plaintiff. The jury had a right to find these to be the facts, and they should have been allowed to exercise it. The charge given at the request of the plaintiff invaded their province and took from them this right. It was equivalent to a declaration by the court, either that the offer to pay for improvements was not conditional or that it was sufficient though conditional. Moreover, even laying the defendant’s evidence in this connection to one side, it was a matter of inference and deduction by the jury from plaintiff’s evidence that she offered to pay the value of the permanent improvements — there was no positive evidence to that effect — "-i the charge should have left the question open before the jury even had there been no evidence as to the offer, if the jury found an offer to have been made, being coupled with an unwarranted condition. The court erred in giving the charge.

The defendant holding through the mortgage executed by the plaintiff as a grantor and not merely as the ■wife of a grantor, was in no position to deny her original estate in the land. Charge 3 requested by defendant was properly refused.

What we have said “above will sufficiently indicate the ground of our conclusion, that the other charges requested by the defendant were well refused. The defendant should have been allowed to prove that permanent improvements of value had been made by him. It is unnecessary .to discuss the other rulings on the admissibility of the evidence. So far as they may be at all questionable, they are clearly innocuous. They involved no prejudice to the defendant.

Reversed and remanded.