Garner v. Foster & Gardner

49 Ala. 167

• Court: Supreme Court of Alabama
• Decided: January 15, 1873
• Status: Published

Opinion

B. F. SAFFOLD, J.

— Has a creditor who has recovered a judgment by suit commenced against the executor of his debtor, within two years after the sale of the debtor’s land under a mortgage given by him, a right to redeem it from the purchaser under section 2513 of the Revised Code ? The section gives the right of redemption to a creditor of the debtor upon a judgment obtained within two years after the sale. This statute does not differ materially, in any respect involved in this case, from the Act of 1842, “ to prevent the sacrifice of real estate ” (Clay’s Dig. p. 502), the bond fide creditor there spoken of having been decided to be a judgment creditor. The Act of 1842 was more obscure in reference to tbe time when tbe judgment must bave been obtained. In Jones & Blair v. Burden (20 Ala. 382), its operation was held not to bave been affected by tbe death of tbe judgment debtor after tbe sale, notwithstanding tbe lien of'the redeeming creditor’s judgment may bave been thereby lost. Tbe court says: “ The judgment remains, and tbe complainant is a judgment creditor.” Bugbee v. Howard (32 Ala. 713) was a case similar to this in every respect, except that tbe suit was instituted against tbe debtor, and tbe judgment recovered against bis executrix. It is true that, in that case, tbe right of tbe creditor to redeem was not questioned. No difference in tbe effect of a judgment against an executor is perceptible, whether rendered in a suit commenced before or after tbe death of tbe testator. In either case, it is against that which can alone give it value, to wit, tbe debtor’s property. As to tbe administration of tbe debtor’s estate, tbe rights of distributees, including tbe widow as such, whether her claim be of dower or otherwise, are either independent of, or subservient to, tbe rights of tbe creditors. And in regard to tbe equality of tbe creditors, they retain against tbe representative all tbe rights which they bad against tbe decedent, while their rights in relation to each other remain unaffected. Of course, the purchaser is not injured, as tbe purchase is made in view of somebody’s right to redeem. We think tbe complainants in tbe bill are entitled to redeem. Tbe decree is affirmed.