Continental Development Corporation, Inc. v. Vines

270 So. 2d 661, 289 Ala. 648, 1972 Ala. LEXIS 1122

• Court: Supreme Court of Alabama
• Decided: November 30, 1972
• Docket: SC 50
• Status: Published

Opinions

McCALL, Justice,

The appellant; Continental Development Corporationj incorporated, appeals from a final decree finding that ¡t had failed t0 proye allegations and averments of its bm of complaint and denying it the rdief prayed for in the bill.

The bill is in equity and, essentially, it seeks to redeem five lots of real property from a mortgage foreclosure sale. The purchaser at the foreclosure sale, National Bank of Commerce, thereafter sold and deeded the subject real property to the respondents, Lanny S. Vines and Clifford Emond, Jr., the appellees before this court.

The bill alleges that the mortgage which the appellant executed contained provision for usurious interest. It also alleges that the appellees, who were vendees of the mortgagee-purchaser at the foreclosure sale, were aware of fraud and deceit in obr taining the mortgage, and further that they were aware, or should have been aware, that usury was charged on said mortgage.

Asserting the right to redeem from the appellees as provided for in Tit. 7, § 727,. Code of Alabama, 1940, the appellant makes the simple averment that it desires to redeem said property and offers to do equity. The bill neither alleges payment nor a tender of the amounts required by the statute to redeem, nor does it show a valid excuse for such failure before filing. Further, the bill does not offer to pay or tender such amounts when ascertained by the court, or state a good reason for invoking the aid of the equity court in the premises.

In Francis v. White, 160 Ala. 523, 527, 49 So. 334, we held that a bill to redeem which was deficient of or lacking in the necessary averments would be without equity. In that case this court 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 nonrfesidency of purchaser, or redemptioner’s inability to ascertain the amounts necessary to be paid or tendered, and ask the court to aid him in ascertaining the true amounts, and offer to pay such amounts before insisting upon his right to redeem or to be reinvested with the title. Francis v. White, 142 Ala. 590, 39 So. 174. Payment nor tender of the amounts necessary to redeem is not in all cases prerequisite to the filing or maintaining of the bill, yet it is always such to the perfection of the right to redeem, and the bill must offer to pay or tender such amounts when ascertained, and show a valid excuse for not so doing before the filing of the bill as well as a good reason why the aid of the court is necessary for this special purpose.”

The trial court found that the bill of complaint did not set forth a sufficient excuse for failing to make a tender of payment of the true redemption price and also that there was no evidence whatsoever that the mortgage was usurious or fraudulent. Accordingly, the court decreed that the appellant failed to prove the allegations and averments in the bill of complaint, the burden being upon it to do so.

We have reviewed the transcript of evidence carefully and are constrained to agree that there is absolutely no testimony or evidence to support appellant’s allegations of fraud and deceit or that usury was charged on the mortgage. Since the proof is lacking in this latter respect, appellant’s right of redemption, if any, must rest on its general averment of a desire to redeem and its offer to do equity. But, as we have already pointed out, the bill does not contain the averments, necessary to support a bill to redeem, of payment or tender or of a valid excuse for the failure to do so before filing, and it does not offer to pay the amounts due under the mortgage when ascertained by the court. Such a bill is without equity. Francis v. White, supra. In Hogan v. City of Huntsville, 288 Ala. 595, 264 So.2d 155, we said this with respect to a bill that is without equity.

“ * * * [I]f a bill lacks equity, it cannot support a decree for relief and so, even if there is no demurrer attacking the bill for want of equity, we must look to see if the bill under consideration contains equity. Edmondson v. Martin, 256 Ala. 73, 53 So.2d 613; Howie v. Alabama State Milk Control Board, 265 Ala. 189, 90 So.2d 752.”

Therefore, we are of the opinion that the appellant has failed to prove any of the allegations which gave equity to the bill, and the mere expression of a desire to redeem and an offer to do equity, the only things left in the bill, were not sufficient to support equitable relief.

The appellant’s first two assignments of error are (1) "The Court erred in refusing to listen to testimony relative to the accounting feature in this cause,” and (2) “The Court erred in confining the evidence solely to the question of redemption.”

The record reveals that during the course of hearing testimony ore tenus at the trial, the chancellor remarked that he would be glad to determine the question of appellant’s right to redeem, but that he did not propose to listen to testimony relative to the accounting feature of the lawsuit. The chancellor said that he would submit the question of accounting to the register in chancery.

Since we are of the opinion and hold that the appellant failed to prove that it was entitled to redeem, there is no occasion for us to determine the issue raised by the two above assignments of error. However, the procedure of directing a reference to be held before the register on a matter of an accounting seems to have been in the chancellor’s province. Equity Rule 79, Alabama Equity Rules, Appendix to Title 7, Code of Alabama, Recompiled 1958.

The appellant’s assignment of error 4 is that the court erred in denying appellant’s motion for rehearing.

This court has held that an assignment indicating the court erred in denying a motion for rehearing is insufficient. In the case of Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422, this court said as follows :

“The appeal is taken from the final decree only, as was appropriate. But the assignments of error include the decree denying a rehearing. That decree was not subject to review by assignments of error made on appeal from the final decree. The duty to include it in the transcript, as held in Campbell v. Rice, 244 Ala. 144, 12 So.2d 385, does not aid appellant in this connection. It cannot be considered in determining whether there was error in rendering the final decree. We are not therefore privileged to review the ruling of the court on the motion for a rehearing, and it serves no purpose on this appeal.”

It has long since been the rule of this court in construing Equity Rule 62 relative to rehearing that a decree overruling a motion for rehearing is not appealable, unless it modifies the decree. Money v. Galloway, 236 Ala. 55, 181 So. 252; Scott v. Scott, 247 Ala. 266, 24 So.2d 25. Assignment of error 4 is clearly without any merit.

The decree of the trial court is affirmed.

Affirmed.

MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and SOM-ERVILLE, JJ., concur. HEFLIN, C. J., dissents.