Johnson v. Smith , 190 Ala. 521 ( 1914 )

MAYFIELD, J.

Appellee, as mortgagor, filed this her bill against appellant as assignee of a certain mortgage. The sole purpose of the mortgagor is to redeem the land from, the mortgage. The right of redemption sought to be exercised is the equitable right, and not the statutory right.

(1) The bill alleges a sufficient excuse for not tendering the amount due and necessary to be paid, on redemption, before the filing of the bill. It appears that complainant is an ignorant and uneducated negro woman, that she was ignorant of the exact amount due, that the respondent was claiming as due an amount largely in excess of the real amount, and that a tender of the true amount, if it had been known to complainant, or could have been ascertained by her upon an accounting for that purpose, would have been unavailing. What was said by Stone, C.' J., in Root v. Johnson, 99 Ala. 92, 10 South. 291, is in exact point in the case at bar: “The law does not exact the observance of a vain ceremony. The purpose of tender, in a case like the present, is to leave the seller without excuse for a noncompliance with his contract, and to cast on him the fault of its breach. When, before tender made, the party to whom money is due declares he will not receive it, or makes any declaration or demand which is equivalent to a refusal to accept the money, if tendered, then actual tender is dispensed with.- — 1 Wait’s Act. & Def. 598. It was sufficient, in this case, to tender payment in the bill. This renders it unnecessary that we should pass on the weight or credibility of the conflicting testimony . bearing on the question of the alleged tender made by Johnson of the whole amount due, before instituting this suit.”

(2) This was not a bill seeking to exercise the statutory right, and therefore the bill need nqt show a compliance with the condition or terms of the statute, as to tender, demand, etc. The requisites of bills to exercise the statutory right of redemption are materially different from those of bills to exercise the equitable right. The one right is a mere privilege conferred by the statute on the mortgagor and others mentioned in the statute, and the conditions imposed on the mortgagor or other persons by the statute must be complied with, or a good and valid excuse given for failure therein, else the bill is demurrable; while the other is. a right created by courts of equity to protect the mortgagor from the loss of his property, but secures to the mortgagee the full payment of Ms mortgage debt. The one is the creature of the statute; the other, of courts of equity. The one does not exist until the other is cut off. The foreclosure which cuts off and terminates the latter right gives rise to, and is the inception of, the former right. Both rights cannot, therefore, exist as to the same property and between the same parties at the same time and under the same conditions.

The respondent demurred to the original and amended bills, assigning 49 grounds of demurrer thereto. It is wholly unnecessary to notice each ground of demurrer separately; in fact, many of the grounds are not insisted upon in the argument. Many of the grounds of demurrer are inapt to a bill like this, which merely seeks to exercise the equitable right of redemption, but would be apt to a bill seeking to exercise the statutory right. It is sufficient to say that the chancellor did not err as to any of his rulings on the demurrers to the original and amended bills.

(3) The respondent answered the bill, and sought, to make his answer a cross-bill, and by such cross-bill attempted to set up a foreclosure of the mortgage after the filing of the bill, with the cutting off of complainant’s right to redeem. The chancellor ruled correctly in sustaining a demurrer to this cross-bill, in so far as it sought to set up a foreclosure after the filing of the bill. A mortgagee or assignee cannot, after bill filed by the mortgagor to redeem, proceed to foreclose under the powers, and thus cut off the privilege to exercise the equitable right of redemption. The mortgagee or assignee, by a cross-bill, or under the power, may have the mortgage foreclosed, if the ^mortgagor fails to pay, or to sustain his bill filed to redeem; that is, he may have a decree directing foreclosure in the event the complainant fails to sustain his bill to redeem, or fails to comply with the decree as to the terms of redemption; but he cannot defeat the bill to redeem by a foreclosure under the powers of the mortgage after bill filed’ to redeem, and pending the suit for such purpose. If the bill to redeem is successful, it is tantamount to a foreclosure. It therefore follows that there was no error in sustaining the demurrer to the cross-bill, which attempted to set up a foreclosure after bill filed and pending the suit. The same relief could be had under the original bill as was sought in the cross-bill.

There was a great deal of testimony taken by both parties, and many objections and exceptions were taken and reserved by both, to certain parts thereof. It would be useless to attempt to treat each in this opinion. .It is sufficient to say that they have been carefully examined and considered, and that we find no reversible error as to any of such rulings. This case is distinguishable from the case of Presnall v. Burgess, 181 Ala. 263, 61 South. 804.

We fully agree with the register and the chancellor as to the findings of fact, as to the amount due on the mortgage debt and necessary to be paid in order to' redeem. In other words, the averments of the bill were proven, and the complainant was entitled to the relief prayed, and awarded by the decree. We find no error in this record of which the respondent can complain.

(4) There was no error in allowing proof of the proceedings in the probate court, setting apart the lands in question as exempt to the widow.

Finding no error in the record, the decree of the chancellor is in all things affirmed.

Affirmed.

Anderson, C. J., and McClellan and Somerville, JJ., concur.