Slaughter v. Webb

Appellant contends that section 5751 requires the payment into court of debt, interest, and all other lawful charges as a condition to redemption in all cases, and that, if the amount of some charges cannot be ascertained, then the payment into court of such as can be ascertained. Heretofore we had hardly deemed it necessary to answer this argument. We read section 5751 to mean that, if a written statement of lawful charges has not been furnished, an offer to pay debt and all lawful charges made in the bill will suffice. This is precisely in line with section 5748, which provides that, in the event the written statement of lawful charges is not furnished, the party entitled to redeem may file his bill without a tender. The only question we could see was whether complainant was entitled to the benefit of the provisions just pointed out, and our consideration of that question was stated.

Section 5751 is new to the Code of 1907; therefore the decision in Long v. Slade, 121 Ala. 267, 26 So. 31, decided in 1898, is not authority as to the meaning of the section. Indeed, this section, as well as section 5748, was enacted to relieve against the strictness of prior decisions.

We are also referred now particularly to Lewis v. McBride,176 Ala. 134, 57 So. 705. Our original opinion supra follows the law laid down in Francis v. White, 160 Ala. 523, 49 So. 334, where the fact that the redemptioner is unable by due diligence to ascertain the amount necessary to be paid or tendered gives him the right to go into equity without a tender, and upon a mere offer to pay in the bill, was recognized and distinctly stated; Francis v. White (the same case), 142 Ala. 590, 39 So. 174, being cited as meaning the same thing. It was there said:

"So in the bill to redeem under the statute the debtor must either aver a payment or a tender of all the amounts by the statute required, or to show a valid excuse for failure therein, before filing, such as nonresidency of purchaser, orredemptioner's inability to ascertain the amounts necessary tobe paid or tendered." (Italics supplied.)

Appellant cannot find in these cases, or in the amended statutes, any authority for the doctrine that the party coming to redeem must make a partial tender before filing his bill, or with his bill when filed, though he is unable to ascertain the total amount of lawful charges due; that he must offer to give up, or give up if need be, money, though he does not know that ultimately he will be allowed to redeem or on what terms he may be allowed to redeem. The law against partial redemptions was stated in Prichard v. Sweeney, cited in the original opinion, and it could never have been reasonably conceived to be otherwise. Nor is there reasoned authority for the doctrine that nonresidence of the purchaser is the only excuse that will be deemed sufficient. For aught appearing in Lewis v. McBride, though it be assumed that the complaining redemptioner made his demand for a statement of the proper person — a matter of doubt which alone would have authorized a resort to equity — she may have been charged with exact information as to the amount necessary to redeem, viz. debt and interest charges. Here the case is quite different; for here several scores of items, other than debt and interest charges, were in dispute.

In Wittmeier v. Cranford, 199 Ala. 1, 73 So. 981, as a reading of the facts will show, nothing like a sufficient excuse was averred.

The question here at issue was not involved in Wootten v. Vaughn, 202 Ala. 684, 81 So. 660. However, some question of redemption was collaterally involved, and there was a statement of the general principles of redemption under the statute and quite a number of cases were cited; but nothing was said to the contrary of our conclusion in the case now at hand. Johnson v. Davis, 180 Ala. 143, 60 So. 799, to which we referred in our original opinion, goes further in support of the right to redeem than we have found it necessary to go in the present case.

We consider any further review of the cases to be useless, as many of them state propositions that no one will ever deny. We have seen no case which, upon critical examination, appears to support appellant's contentions.

Application overruled.

ANDERSON, C. J., and THOMAS and MILLER, JJ., concur.