Bean v. Pearce , 151 Ala. 165 ( 1907 )

McCL-ELLAN, J.

(dissenting.) —The bill, filed only 20 days before the 2 years for redemption had elapsed, being one to effectuate statutory redemption, it is an election by the proposed redemptioner to treat the foreclosure- as valid, and the ajipellee as the purchaser at the sale, ‘-‘at the recited sum of $150.” As a condition precedent- to statutory redemption,- the statute (section 3507) requires that the party desiring to redeem shall pay or tender the purchase money,, with 10 per cent, interest thereon and lawful charges. The bill avers that the complainant tendered appellee, and on filing the bill paid into the registry of the court, only $85. Omitting any consideration of the lawful charges, if any there were or are, the tender and payment into court was and is wholly insufficient to give the bill the requisite equity. Beebe v. Buxton, 99 Ala. 117, 12 South. 567; Beatty v. Brown, 101 Ala. 695, 14 South. 368; Murphree v. Summerlin, 114 Ala. 54, 21 South. 470; Long v. Slade & Farrish, 121 Ala. 271, 272, 26 South. 31; Burke v. Brewer, 133 Ala. 389, 32 South. 602; Given v. Troxel, (Ala.) 39 South. 578; Lacey v. Lacey, (Ala.) 39 South. 922; Francis v. White, 142 Ala. 590, 39 South. 174. The majority opinion hold that the offer to pay any other sum found due, as alleged in the bill, renders the bill equitably sufficient. While such offer may, in a proper case, where only the lawful charges are unknown, suffice, no such rule or privilege is open to a proposed redemptioner with regard to the purchase money. As decided in Beatty v. Brown, supra, no account of his possible ignorance of the amount of the purchase money is taken by the statute (section 3507). He must know, and, knowing, pay or tender that sum. The announcement in, the court’s opinion, above referred to, is in im- . mediate conflict with thé above cited authorities and the statute as well.

It is asserted in the majority opinion that “the difference between this sum (meanng the $150) and the amount due upon the mortgage debt have never been paid to the mortgagor.” The quoted statement is without support or justification in any averment of the bill. So it heed hardly be said that this declaration of the opinion is unwarranted. But, even if such an allegation was present in the bill, this complainant, having elected to treat the foreclosure as vald, whether in fact voidable or not, at his option seasonably expressed, and the appellee as purchaser at the bid sum of $150, must certainly be held to have also elected to look to the purchaser (appellee) for the payment to him of the excess over the sum formerly due under the mortgage and cost of foreclosure. He cannot in one breath confirm the foreclosure, which includes a purchaser at a given sum, and in the next deny that there was a purchaser at such sum. He can have no right to seek statutory redemption, which only comes into existence after foreclosure (Powers v. Andrews, 84 Ala. 291, 4 South. 263), and at the same time assume to name the purchase money at a different sum. That, at lave, he may reserve the excess, cannot be doubted; and if this purchaser is insolvent, then obviously his remedy was to disaffirm the sale, averring that the alleged purchaser was insolvent and had failed or refused to pay the excess to the mortgagor. The illustration given by the court might be addressed to the legislative mind, but is not considerable by the courts, the only possible duty of which is to observe and enforce the plain terms of the statute in this regard. If the proposed redemptioner omits to assert his right to recover from the purchaser at the excess, then the predicament shown by the illustration in the majority opinion is his fault, not that of the statute (section 3507). Creditors of the erstwhile mortgagor may have rights attaching to the excess unpaid by the purchaser; and, if so, the mortgagor cannot relinquish (even if the statute was less imperative) and destroy an asset of his estate to their detriment. Besides, it does not appear from this bill but that there were many bidders at sums between the mortgage debt and the $150. I take it the opinion does not intend to hold that in no event can a mortgagee become a purchaser at the foreclosure sale at a sum in excess of the mortgage debt and costs. If it does so intend, surely no doubt of its error can exist.

In my opinion the decree appealed from should be affirmed. ■

Dowdell, J., concurs in the above opinion.