BRICKELL, C. J.
— It is a common law right of a judgment creditor to redeem the lands of his debtor which may be subject to mortgage. The right must be exercised while the mortgage is redeemable — before a foreclosure under the decree' of a court of equity, or before a sale authorized by a power of .sale in the mortgage, which has the effect of a decree of foreclosure. If, under a power in the mortgage, there has been a voidable sale, a sale at which the mortgagee purchased, placing himself in the situation of vendor and vendee, a court of equity will set it aside upon timely application, and let the judgment creditor in to redeem. The common law right of redemption is essentially different and distinct from the right to redeem given by the statute, which can but seldom, if ever, come into existence until the common law right has been barred by a sale under the decree of a court of equity, or under a power in the mortgage. If it be possible, in any case, that [131]*131the two rights can co-exist,, and that the creditor may have an election to exercise either, in one bill they could'not be blended, though the bill was filed in- a double aspect, or’in the alternative. Such a bill would present inconsistent and repugnant claims of relief, and the relief which could be granted in one aspect would ' be materially variant from that which could be granted in the other. A bill in equity may be filed in the alternative, or in a double aspect, when in either alternative the complainant is entitled to the same relief. It can not be based upon inconsistent, repugnant statements, each entitling the complainant to relief of a different kind and nature. Micou v. Ashurst, 55 Ala. 607; Rives v. Walthall, 38 Ala. 329.
The present bill is filed to perfect the statutory right of redemption, and to compel the appellants, purchasers at a sale under a mortgage, to convey to the appellee, a judement creditor of the mortgagor, the title acquired at the mortgage sale. The validity of the sale is not by proper averments impeached, nor is its vacation claimed; and in this suit, without destroying the right of appellee to the specific relief -prayed, it is not impeachable. If the sale be invalid, the court would not collaterally and incidentally confirm it, by decreeing a conveyance of the title acquired under- it. The question, consequently, to which much of the argument of counsel is devoted, the validity of a purchase by a junior mortgagee, at a sale under a senior mortgage, or the nature and quality of the title he acquires, is not now involved, and we do not consider it. The bill is, of necessity, founded on the' assumption of the validity of the sale, and the decree claimed is, that the appellee shall be clothed with the title which passed to the purchasers.
■ The right of redemption the appellee asserts, is derived from and dependent upon the statute, and can become perfect, capable of enforcement either at law or in equity, only upon performance of all the conditions upon which it is dependent, unless a valid excuse for non-performance is shown. The payment or tender of the purchase-money and ten per cent, per annum thereon, together with all the lawful charges, au$ the offer to credit the mortgagor upon a subsisting judgment with a sum at least equal to ten per cent, of" the purchase-money, within two years' from the sale, are the conditions with which a judgment creditor coming to redeem must comply. — Code of 1876, § 2881. Each of these conditions is an ingredient of the right to redeem, the one' aé essential as the other, and performance of no one of them can be dispensed with, unless a sufficient excuse for non-performance is shown. The payment of the lawful charges upon the lands which have accrued to the purchaser, is as essential, is as clear and distinct a right of the purchaser, and as clear and distinct a duty of the party offering [132]*132to redeem, as is the payment of the purchase-money and the statutory'interest. The tender of the purchase-money and interest, withholding, or not including a tender of lawful charges, may rightfully be rejected by the purchaser. It is not the tender the statute requires him to accept, and upon acceptance to part with the title to the lands. The purchaser becomes the owner of the lands; there remains to the mortgagor, or to his judgment creditors, the mere right to redeem upon prescribed terms, within the period prescribed by the statute. • It is contemplated, that as owner, while in possession, before redemption, he may make permanent improvements. 'If he had not the right to make them during the period of two years, the value of the lands to him would be lessened, and lessening their value for that period would tend to their sacrifice at forced sales, the evil the statute is intended to avoid. The value of such improvements is a lawful charge upon the lands, which the party coming to redeem must pay, or offer to pay.' An offer to redeem, not including the value of such improvements, is not sufficient — will not give rise to the right of redemption. — Posey v. Pressley, 60 Ala. 243.
The offer to redeem made by the appellee did not include the payment of the mortgage debt due the appellants, nor- did it include compensation for the improvements-made upon the lands. The offer of- payment of the mortgage debt seems to have been omitted upon the supposition, that the appellants were bound to apply the rents accruing while they were in possession to its payment, and these would operate its extinguishment. The mortgage debt due to the appellants was a lawful charge upon the lands, to the payment of which whoever came to redeem under the statute was bound. The words of the statute are “lawful charges,” and their'proper signification is “every lien, or incumbrance, or claim, the purchaser- may have upon the premises, and for which, at law or in equity, he is entitled to hold the lands as security, or to the satisfaction of which a court of equity would condemn them. — Griggs v. Banks, 59 Ala. 311; Couthway v. Berghaus, 25 Ala. 393. A mortgagee in possession, under a purchase which is voidable, or before foreclosure, is bound to apply the rents and profits to the reduction of the mortgage debt.. But that is not the relation in which a. purchaser at a mortgage sale stands under the statute; nor can lie, at the option of parties claiming redemption under the statute, be converted -into that relation. He is not a mortgagee in possession, but a purchaser, the absolute owner, entitled to the rents and profits, and unimpeachable for waste. — Spoor v. Phillips, 27 Ala. 193; Kannon v. Pillow, 7 Hump. 281. It would be most inequitable to convert him into the relation of'a mortgagee in possession, for there is no remedy by which he [133]*133can relieve himself from accountability for rents and profits, and cut off the statutory right of redemption within the period prescribed for its exercise. The appellee, if dealing fairly, if intending the honest exercise of the right the statute gave him, ■ought not to have satisfied himself with tendering a vague, indefinite sum, or simply the sum which would pay the purchase-money and the statutory interest. The mortgage to the appellants was not unknown to him; the amount claimed to be due thereon was communicated and not disputed. A liability or a ■duty to pay it, as a condition .of redemption, was denied upon the ground that the rents of the premises, while in possession of the appellants, ought to be applied to its extinguishment.
Free access — add to your briefcase to read the full text and ask questions with AI
BRICKELL, C. J.
— It is a common law right of a judgment creditor to redeem the lands of his debtor which may be subject to mortgage. The right must be exercised while the mortgage is redeemable — before a foreclosure under the decree' of a court of equity, or before a sale authorized by a power of .sale in the mortgage, which has the effect of a decree of foreclosure. If, under a power in the mortgage, there has been a voidable sale, a sale at which the mortgagee purchased, placing himself in the situation of vendor and vendee, a court of equity will set it aside upon timely application, and let the judgment creditor in to redeem. The common law right of redemption is essentially different and distinct from the right to redeem given by the statute, which can but seldom, if ever, come into existence until the common law right has been barred by a sale under the decree of a court of equity, or under a power in the mortgage. If it be possible, in any case, that [131]*131the two rights can co-exist,, and that the creditor may have an election to exercise either, in one bill they could'not be blended, though the bill was filed in- a double aspect, or’in the alternative. Such a bill would present inconsistent and repugnant claims of relief, and the relief which could be granted in one aspect would ' be materially variant from that which could be granted in the other. A bill in equity may be filed in the alternative, or in a double aspect, when in either alternative the complainant is entitled to the same relief. It can not be based upon inconsistent, repugnant statements, each entitling the complainant to relief of a different kind and nature. Micou v. Ashurst, 55 Ala. 607; Rives v. Walthall, 38 Ala. 329.
The present bill is filed to perfect the statutory right of redemption, and to compel the appellants, purchasers at a sale under a mortgage, to convey to the appellee, a judement creditor of the mortgagor, the title acquired at the mortgage sale. The validity of the sale is not by proper averments impeached, nor is its vacation claimed; and in this suit, without destroying the right of appellee to the specific relief -prayed, it is not impeachable. If the sale be invalid, the court would not collaterally and incidentally confirm it, by decreeing a conveyance of the title acquired under- it. The question, consequently, to which much of the argument of counsel is devoted, the validity of a purchase by a junior mortgagee, at a sale under a senior mortgage, or the nature and quality of the title he acquires, is not now involved, and we do not consider it. The bill is, of necessity, founded on the' assumption of the validity of the sale, and the decree claimed is, that the appellee shall be clothed with the title which passed to the purchasers.
■ The right of redemption the appellee asserts, is derived from and dependent upon the statute, and can become perfect, capable of enforcement either at law or in equity, only upon performance of all the conditions upon which it is dependent, unless a valid excuse for non-performance is shown. The payment or tender of the purchase-money and ten per cent, per annum thereon, together with all the lawful charges, au$ the offer to credit the mortgagor upon a subsisting judgment with a sum at least equal to ten per cent, of" the purchase-money, within two years' from the sale, are the conditions with which a judgment creditor coming to redeem must comply. — Code of 1876, § 2881. Each of these conditions is an ingredient of the right to redeem, the one' aé essential as the other, and performance of no one of them can be dispensed with, unless a sufficient excuse for non-performance is shown. The payment of the lawful charges upon the lands which have accrued to the purchaser, is as essential, is as clear and distinct a right of the purchaser, and as clear and distinct a duty of the party offering [132]*132to redeem, as is the payment of the purchase-money and the statutory'interest. The tender of the purchase-money and interest, withholding, or not including a tender of lawful charges, may rightfully be rejected by the purchaser. It is not the tender the statute requires him to accept, and upon acceptance to part with the title to the lands. The purchaser becomes the owner of the lands; there remains to the mortgagor, or to his judgment creditors, the mere right to redeem upon prescribed terms, within the period prescribed by the statute. • It is contemplated, that as owner, while in possession, before redemption, he may make permanent improvements. 'If he had not the right to make them during the period of two years, the value of the lands to him would be lessened, and lessening their value for that period would tend to their sacrifice at forced sales, the evil the statute is intended to avoid. The value of such improvements is a lawful charge upon the lands, which the party coming to redeem must pay, or offer to pay.' An offer to redeem, not including the value of such improvements, is not sufficient — will not give rise to the right of redemption. — Posey v. Pressley, 60 Ala. 243.
The offer to redeem made by the appellee did not include the payment of the mortgage debt due the appellants, nor- did it include compensation for the improvements-made upon the lands. The offer of- payment of the mortgage debt seems to have been omitted upon the supposition, that the appellants were bound to apply the rents accruing while they were in possession to its payment, and these would operate its extinguishment. The mortgage debt due to the appellants was a lawful charge upon the lands, to the payment of which whoever came to redeem under the statute was bound. The words of the statute are “lawful charges,” and their'proper signification is “every lien, or incumbrance, or claim, the purchaser- may have upon the premises, and for which, at law or in equity, he is entitled to hold the lands as security, or to the satisfaction of which a court of equity would condemn them. — Griggs v. Banks, 59 Ala. 311; Couthway v. Berghaus, 25 Ala. 393. A mortgagee in possession, under a purchase which is voidable, or before foreclosure, is bound to apply the rents and profits to the reduction of the mortgage debt.. But that is not the relation in which a. purchaser at a mortgage sale stands under the statute; nor can lie, at the option of parties claiming redemption under the statute, be converted -into that relation. He is not a mortgagee in possession, but a purchaser, the absolute owner, entitled to the rents and profits, and unimpeachable for waste. — Spoor v. Phillips, 27 Ala. 193; Kannon v. Pillow, 7 Hump. 281. It would be most inequitable to convert him into the relation of'a mortgagee in possession, for there is no remedy by which he [133]*133can relieve himself from accountability for rents and profits, and cut off the statutory right of redemption within the period prescribed for its exercise. The appellee, if dealing fairly, if intending the honest exercise of the right the statute gave him, ■ought not to have satisfied himself with tendering a vague, indefinite sum, or simply the sum which would pay the purchase-money and the statutory interest. The mortgage to the appellants was not unknown to him; the amount claimed to be due thereon was communicated and not disputed. A liability or a ■duty to pay it, as a condition .of redemption, was denied upon the ground that the rents of the premises, while in possession of the appellants, ought to be applied to its extinguishment. The rents accrued to the appellants as owners, and were ’not subject to the extinguishment of the purchase-money paid by them', or any lawful charge to which the land was liable.
The appellants claimed a charge of one hundred and seventy-five dollars for improvements made by them while in possession. The making of such improvements and their value were disputed by the appellee. That the value of improvements would probably become matter of dispute between the purchaser, or party in possession, and the party coming to redeem, is recognized by the statute, and provision is made for its adjustment when it occurs. Upon the purchaser, or party in possession, claiming compensation for permanent improvements, rests the duty of informing the party coming to redeem of the character' and extent of the claim. If there is disagreement upon this point between the parties, each party must appoint a referee to ascertain the value of the improvements; and if the referees, can not agree, they must appoint an umpire, and the award rendered is final. If the party offering to redeem declines to appoint- a referee, he must pay the value of the. improvements claimed by the party in possession ; and if the latter declines to appoint a referee, he forfeits all right to compensation for improvements. ■Code of 1876, §§ 2887-8. The purpose of the statute can not be mistaken. It is intended to prevent litigation as to the value •of improvements, delaying redemption, or incumbering the title ■of the purchaser with inchoate, imperfect claims to redeem, until it is settled by the judgment of a court of competent jurisdiction. The parties have no choice; it is not for either of them to say a reference will not be submitted to, that the value ■of the improvements is a matter to be determined otherwfise, ■or left open for future litigation. When the appellants made the claim for improvements, if it was excessive, and the appellee was unwilling to pay it, he should have nominated a referee. Then, if the appellants had refused a like nomination, they would have forfeited all claim to compensation. But the appellee, when the' appointment of referees was suggested, failed [134]*134to nominate, and failing, the statute declares he must pay the value of the.improvements claimed by the appellants. The right to redeem is derived from the statute; it must be exercised in the mode, and upon the terms and conditions prescribed by the statute. The appellee did not comply with the statute; did not tender payment of the charges to which the land was subject, and payment of which the appellants could rightfully demand, and did not therefore acquire a right to redeem. A court of equity will intervene to compel the purchaser or party in possession'to submit to redemption and to a conveyance of title, only when the party claiming it has a perfect right to redeem ; a right made perfect by a compliance with the terms of the statute — all that is due from him must have been yielded or tendered, unless some sufficient excuse for the failure to yield or tender is shown.
The decree of the chancellor is reversed, and a decree here rendered, dismissing the bill at the costs of the appellee in this court and in the court of chancery.