Malone v. Nelson , 232 Ala. 243 ( 1936 )

This bill is filed by the "child" of the mortgagor, whose disabilities of nonage have been removed. The mortgage was executed by the mother and father of the complainant, both of whom are still living. There is nothing in the averments of the bill showing that the complainant has any right, title, or interest in the property, actual or inchoate. The only persons having any interest in the property, so far as appears from the averments of the bill, are the mortgagor and the vendee of the purchaser at the foreclosure sale.

The right of the complainant to maintain the bill — its equity — is rested upon the mere ipse dixit of the statute, which provides: "Where real estate, or any interest therein, is sold under execution, or by virtue of any decree in the circuit court, or under any deed of trust, or power of sale in a mortgage, the same may be redeemed by the debtor, junior mortgagee, vendee of the debtor, or assignee of the equity or statutory right of redemption, wife, widow, child, heir at law, devisee, or any vendee or assignee of the right of redemption under this Code, from the purchaser, or his vendee, within two years thereafter in manner following." Code 1923, § 10140. (Italics supplied.)

The question to be decided is whether or not the statute confers on one who has no interest in the property, actual or inchoate, the right to redeem from a foreclosure sale? The solution of the question turns upon the interpretation of the statute, section 10140, Code 1923, in its present form, in connection with sections 10141 and 10152.

The statute, now section 10140, first appeared in the Code of 1852, in the following language: "§ 2116. Where real estate, or any interest therein, is sold under execution, or by virtue of any decree in chancery, or under any deed of trust, or power of sale in a mortgage, the same may be redeemed by the debtor from the purchaser, or his vendee, within two years thereafter, in manner following."

This statute was carried forward into the Code of 1867 as section 2509, 1876 as section 2877, and 1886 as section 1879, without change of verbiage. So, also, into the Code of 1896, as section 3505, except the debtor's "vendee, junior mortgagee orassignee of the equity of redemption" was added as persons upon whom the right or privilege was conferred. The same is true as to section 5746 of the Code of 1907, except that the debtor's"wife, widow, child, heir at law, devisee, or his vendee orassignee of the right to redeem under this Code" was incorporated in this section by revision of the Code of the Code Commissioner. The only change in the verbiage of the statute in the present Code was the substitution of the words"decree in the circuit court" for "decree in chancery." (Italics supplied.)

As a part of the system of law for the "Redemption of Real Estate," embraced in chapter 4, part 2, title 6 of the Code of 1852 embodying section 2116 to section 2128, both inclusive, we find section 2125, providing: "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." This section brought forward in the several Codes, up to and including the Code of 1896, without change in its verbiage, appeared in the Code of 1896 as section 3515.

So, also, the following provision was incorporated in the Code of 1896, as section 3516: "No redemption by a judgment creditor from the purchaser or his vendee, or by one judgment creditor from another, shall operate to defeat the right of redemption in this chapter secured to the debtor, his vendee, junior mortgagee or assignee of the equity of redemption, or ofa child to whom the debtor had conveyed the land," etc. Though section 3515 of the Code of 1896 was dropped in carrying the chapter into the Code of 1907, the provision above italicized was carried forward as section 5756, defining the word "child" as a redemptioner, and in the present Code 1923, as section 10152. (Italics supplied.)

As pointed out above, the Code Commissioner, in revising section 3505 of the Code of 1896, embodied in that section, appearing in the Code of 1907 as section 5746, as among those entitled to redeem, the "child" of the debtor; no doubt in the sense as defined in the several previous Codes.

In Lehman, Durr Co. v. Moore, 93 Ala. 186, 189, 190,9 So. 590, 592, decided in 1891, and dealing with the right of a joint debtor — a former purchaser — to redeem, it was said: "We are, however, of opinion that in this case either of the mortgagors may exercise this statutory right. Each of them is manifestly a debtor, and so fills that term of the statute. Each of them is as much within the spirit and purpose of the law with respect to a one-half undivided interest as if he alone was concerned in the premises. Each of them is as much entitled, abstractly speaking, to recover that interest, as if his right to do so were not apparently clogged by a like interest in the other. Yet neither can recover only the interest to which he is ultimately entitled, because the purchaser has a right to insist upon payment of the whole amount bid by him with interest and charges, and it would be an anomaly, which the law does not contemplate and will not tolerate, to require him to make the purchaser whole in respect of all he has expended, and the interest on his outlay, in consideration of the land, and at the same time leave half that consideration in his hands; and because, further, the statute itself provides for and requires the redemption of whatever interest passed by theforeclosure sale. In this case that interest was the entire fee. * * * The thing, and the only thing, subject to redemption is the interest which thus passed." (Italics supplied.)

In Powers et al. v. Andrews (1888) 84 Ala. 289, 293, 294,4 So. 263, 265, speaking of the effect of foreclosure, it was said: "When a regular sale is made under a power contained in the instrument, not only the mortgagor, but all persons claiming any interest in the equity of redemption by privity of estate with him, are considered as parties to the proceeding, and are precluded by it as fully as if they had been made parties defendant by regular subpœna in an ordinary foreclosure suit. * * * The sale, in other words, destroys theequity of redemption, and in this state transmutes it into anaked statutory right of redemption." (Italics supplied.) See, also, Aiken et al. v. Bridgeford Co., 84 Ala. 295, 4 So. 266.

In Commercial Real Estate Building Association v. Parker et al. (1888) 84 Ala. 298, 301, 302, 4 So. 268, 269, it was observed: "The inquiry is, can the debtor still exercise it [the statutory right or privilege], although he has no interest in the property sold at the time of the sale? Does the statute contemplate that he shall redeem property in which he has no interest or estate? The very idea of redemption necessarily involves the correlative idea of an interest in the thing sought to be redeemed. It is the rescuing from sacrifice of the debtor's property, — not the property of another. We construe the statute to confer the statutory right of redemption upon debtors only for the purpose of redeeming their own property, — property in which they have some interest at the time of sale. If the debtor has parted with this interest, he has abandoned the right to redeem, because the right cannot existexcept as an incident of ownership. Any other construction of the statute would lead to incongruities that would seem to be inharmonious with the general legislative intention as apparent from the context of the entire law." (Italics supplied.)

These utterances were repeated in Kelley v. Hurt et al. (1928) 217 Ala. 694, 117 So. 411, and again in Braly v. Polhill, 231 Ala.Sup. 633, 166 So. 419.

In Baker, Lyons Co. v. Eliasberg Bros. Mercantile Co.,201 Ala. 591, 592, 79 So. 13, 14, wherein the question presented was whether or not the assignee of a child of the mortgagor — a son — who claimed under a mortgage had the right to redeem, it was said: "The statute was again amended, as rewritten in the Code of 1907 (section 5746), by the extension of the class who may redeem to include the 'wife, widow, child, heir at law, devisee, or his vendee or assignee.' These amendments of this statute are in harmony with the view expressed by Judge Stone, and with the general authorities on the question — that he who may redeem must have an interestderived mediately or immediately from, or through, or in theright of the mortgagor, so as to constitute him the owner of apart of the mortgagor's original equity." (Italics supplied.)

The views of Judge Stone referred to were expressed in what appears to be a concurring opinion in Powers et al. v. Andrews,84 Ala. 289, 294, 4 So. 263, 266, in which he said: "The statutory right to redeem is not property, but a mere privilege conferred by law. This naked right or privilege is not the subject of bargain and sale. A mortgagor, or defendant in a judgment or decree, whose land has been sold under one or the other, may exercise this statutory right at any time within two years, provided the right remains in him when the sale is made. It is, however, a mere incident to ownership; and if, before the sale, he has parted with his interest, — in one case the equity of redemption, and in the other the title to the land, — he has then lost his statutory right to redeem. There can beno incident without a principal, and the former cannot exist after the latter —ownership — has ceased to exist. The one is dependent on theother, and the statutory right cannot survive its severancefrom the property right." (Italics supplied.)

There was no change in the verbiage of this section as it appeared in the Code of 1907, § 5746, except in the respect above noted, to meet the condition arising from the consolidation of the chancery court with the circuit court.

Therefore, in the light of the history of the statute — that its primary purpose is to conserve the interest of the mortgagor-debtor, by preventing a sacrifice of his property, that the statutory right succeeds the equity of redemption, and cannot come into being until the equity of redemption is cut off by valid foreclosure, its interpretation by this court in the cases above referred to, and especially Baker, Lyons Co. v. Eliasberg Bros. Mercantile Co., 201 Ala. 591, 592,79 So. 13, and its readoption into the Code of 1923 without change of verbiage, and that all persons upon whom the statutory right is conferred, other than the "child," to wit, "the debtor, junior mortgagee, vendee of the debtor, or assignee of the equity or statutory right of redemption, wife, widow, * * * heir at law, devisee, or any vendee or assignee of the right of redemption under this Code" (Code 1923, § 10140), have an interest acquired mediately or immediately from the debtor — the conclusion is inescapable that in the revision by the Code Commissioner "child" was used in the sense it had been used in the previous Codes, and therefore a child without an interest has no right or privilege, under the statute, to redeem. The case of Braly v. Polhill (Ala.Sup.) 166 So. 419,¹ gives to the word "child," as used in the statute, the interpretation the statute itself has given it all through its history, as we have shown, and is bound to be sound.

The right of the wife to redeem is rested upon her interest — inchoate right of dower — a right subject to a monetary valuation. Hamm v. Butler et al., 215 Ala. 572, 112 So. 141; 19 R.C.L. p. 643, § 460; Kopp v. Thele, 104 Minn. 267,116 N.W. 472, 17 L.R.A.(N.S.) 981, 15 Ann.Cas. 313; Mackenna v. Fidelity Trust Company of Buffalo, 184 N.Y. 411, 77 N.E. 721, 3 L.R.A.(N.S.) 1068, 112 Am.St.Rep. 620, 6 Ann.Cas. 471. See, also, Bunn v. Braswell, 142 N.C. 113, 55 S.E. 85; Webb v. Ritter, 60 W. Va. 193, 54 S.E. 484; 42 C. J. p. 353, § 2081, p. 358, § 2092.

The complainant not having the right to redeem, his bill is without equity (Walden v. Speigner, 87 Ala. 379, 6 So. 81); therefore, he has no just ground to complain that the decree required him to compensate the owner for the improvements and taxes paid.

In the course of the opinion in Leith v. Galloway Coal Co.,189 Ala. 204, 208, 66 So. 149, 150, written by Justice Mayfield, who subsequently became Code Commissioner, the following observation was made: "There may be trouble in the construction of this statute, where two or more persons or classes of persons mentioned in the statute attempt to assert or exercise the statutory right conferred; but that question is not in this case, and we shall not attempt to discuss or to decide it until it arises, if it ever does." This thought accounts for section 10141, written into the Code by Judge Mayfield as Code Commissioner.

As before stated, the thing redeemed or reclaimed is the title, and in Allison v. Cody et al., 206 Ala. 88, 89 So. 238, it was held, under the facts of that case, that the effect of the redemption was to vest in the redemptioner, Cody, the indefeasible title. The title theretofore was vested in the purchaser at the mortgage sale. See, to same effect, Hudson et al. v. Morton, 231 Ala. 392, 165 So. 227.

The pertinent inquiry may arise: Can the Legislature by its ipse dixit take property from one person and vest it in another who has never had any sort of interest in it? Would this be due process of law? I do not think so.

GARDNER, J., concurs in the foregoing.

¹ 231 Ala. 633.