Morrison v. Formby , 191 Ala. 104 ( 1914 )

McCLELLAN, J.

(1) On September 24, 1906, R. L. Formby and wife executed to A. O. Williams, as trustee, a deed of trust on certain real estate to secure the payment of an indebtedness to G. F. Morrison. On March 10, 1909, the trustee sold the land in execution of the trust for the satisfaction of the indebtedness it was given to secure. At the sale under the power G. F. Morrison became the purchaser of the land. On October 4, 1909, Morrison made with respondents Maxey, Wood, Ellenburg, and Floyd executory contracts Qf sale of separate parts of the land so bought at the foreclosure sale, giving them bonds for the conveyance of appropriate titles when the purchase money, represented by notes, was fully paid. Having in contemplation redemption of the land under the statutes to that end, Formby, on January 24, 1911, through her attorney and solicitor, Mr. Kerr, made written demand upon Morrison, for the statement of debt and lawful charges as stipulated in Code, § 5,748. • That, section, before its -amendment by the act approved April 13, 1911 (General Acts .1911, p. 391)., reads -: “5748. .Written-. Demand fór Charges-p-May File Bill. — Any one'Mesiring and en-titled to redeem-may -make written demand of- the purchaser or his-vendee- far; a statement-in Avri-ting of.-.the debt and-all-lawful charges claimed by.-Min,-, and-such purchaser or vendee shall, within ten days after such written demand, furnish such person making the demand with a written itemized statement of the debt and all lawful charges claimed by him, and failing so to do, shall forfeit all claim or right to compensation for improvements, and the party so entitled to redeem may, on the expiration of the ten days, file his bill in equity without a tender to enforce his rights hereunder.”

This demand upon Morrison was npt complied with by him. There was no demand made upon Maxey, Wood, Ellenburg, and Floyd, the purchasers from Morrison under the executory contracts.

It is insisted that since, as appears, Formby knew of these dispositions of several parts of the land to- Maxey, Wood, Ellenburg, and Floyd, demands should, under the statute, have been made upon each for and with reference to the tract he had contracted to buy, and so in order to lay the condition upon which the statute visits its forfeiture of the “right to compensation for improvements.” The chancellor concluded against this contention, and our opinion accords with his.

(2) Redemption of lands under our statutes to that end cannot be exercised otherwise than that of the whole of the property bought at the sale. The process contemplated and required by the statutes makes an indivisible entity of the act of redemption. Section 5748, set out before, does not appear to have contemplated a case where there has been a sale or sales of part only of the land bought by the purchaser at a sale under execution, under mortgage or deed of trust, or under decree of a court of equity. However that is, the office and effect of statutory redemption is to reinvest title in the redemptioner, to divesting it out of the person in whom it is vested. Such is also the clear purport of this provision of Code, § 5757: “Any person offering to redeem must pay to the person in possession the value of all permanent improvements made by him after he acquired title” (italics supplied).

The established foundation, on redemption, for.the right to compensation for permanent improvements is title, meaning necessarily the repository of the legal title. Such is the principle underlying the analogy present in rulings made in the administration of section 5749.—Lehman-Durr v. Collins, 69 Ala. 127, 181. The respondents Maxey, Wood, Ellenburg, and Floyd were in possession under contracts of purchase, but the legal title remained in Morrison. Upon him alone could the demand contemplated in Code, § 5748, be made. He had not parted with the title. He was entitled to the fund redemption affords. He had only promised — engaged — to convey it upon a contingency. His contractees had engaged in the full light of the law alloAving the redemption here sought. If permanent improvements AA'ere made by them, it was with the conclusively imputed knowledge that redemption might be sought and effected. If the process of redemption has placed them in a predicament as respects improvements made by them, it cannot be charged to the redemptioner, rather to him whose contracts to convey, subject of course to redemption, they accepted. Under these contracts, they certainly cannot be regarded as substitutes, in degree even, for Morrison. They have not title; the element and essence of property right to which redemption must be referred for effectual operation. It results, consequently, that Morrison’s failure to furnish the statement required by the demand, under the statute (5748) was a failure Avithin the condition of the statute and wrought, according to its express provisions, a complete forfeiture of the right to claim or enforce, as against this redemptioner, compensation for improvements made on the land by any one. So there was no error in the decree disallowing any claim made for the value of permanent improvements as a condition to the effectuation of redemption by the mortgagor, Formby.

(3) According to the authority of Weathers v. Spears, 27 Ala. 455, the decree appealed from is affected with error, as separately assigned by Morrison, in that the court did not allow Morrison the legal rate of interest upon the principal sum to be paid to effect redemption; for that the filing of the bill to redeem was, in virtue of Code, § 5748, equivalent to tender. The fact that the decree declined allowance of any sum as for rents and profits after tender. cannot serve to extinguish or toll this right of the purchaser to interest upon the principal sum. If the redemptioner (Formby) conceived that there was error in declining to make the stated allowance for rents and profits (if such were allowable under the evidence in the cause), he should' have sought, in the usual way, review of the decree in that respect. We do not understand Steele v. Hanna, 91 Ala. 190, 9 South. 174, to pronounce a rule, in conflict with that soundly announced in Weathers v. Spears, supra.

The decree is affirmed in all respects, except that it will be corrected, so as to include in'the sum required Of Formby- to redeem,- interest, at the legal rate, from the date of the filing of the bill to the date of the decree confirming the report of the register.-. .- - -

•The decree'is-corrected, as indicated, and, as corrected, ais- affirmed-.-

Corrected and- affirmed.

Sayre, de Graffenribd, and..Gardner, JJ., concur..

ADDENDA.

McCLELLAN, J.—

(4) After the termination of the special term at which the decree appealed from was corrected and affirmed, and after the expiration of the period alluded to by rule 38 (Civil Code, p. 1515) for presenting an application for rehearing, appellant now moves the court to modify the decree, so as to affirm in part and reverse in part and render the decree here which should have been rendered in the court below. Without considering the merits of the matter now presented, it must be ruled — according to the theory underlying appellee’s motion to strike the appellant’s motion — that the motion the appellant has undertaken to make comes too late, at a time when this court has lost-its power to alter its decree. Motion of appellant is stricken.

Sayre, de Graffenried, and Gardner, JJ., concur.