Henderson v. Hambrick

129 Ala. 596

• Court: Supreme Court of Alabama
• Decided: November 15, 1900
• Status: Published

Opinion

SHARPE, J.

To be entitled to redeem from a purchaser of land sold under a chancery decree one must be of the classes to which the statute gives the right of redemption as specified in chapter 97 of. the Code. Given to the applicant the original status of a redemptioner, the right is still dependent npon a condition, viz.: he must not have been in default in respect of yielding possession to the purchaser after his demand, according to the requirement of section 3506 of the Code.

This hill alleges that complainants were defendants in the chancery suit wherein the sale was decreed for the satisfaction of a vendor’s lien, but it does not show that they were debtor defendants. Nor does it show that they were of any class other than debtors who by the statute are privileged to redeem.

The bill is also insufficient in failing to show either compliance by complainants with the statutory condition of giving possession to the purchaser or a valid reason for not giving possession. For all that is Shown the complainants may or may not have perfected a right to redeem. There is no presumption to aid the bill in that respect; and to avoid the usual presumption which stands against the pleader, it'should be shown affirmatively that they have not failed to do what the law required in order to be invested with the right they seek to enforce.—Nelms v. Kennon, 88 Ala. 329; Stocks v. Young, 67 Ala. 341; Sandford Ochtalomi, 23 Ala. 669; Paulding v. Meade,Ib. 505.

The decree appealed from will be reversed and one will be here rendered sustaining the demurrer and allowing complainants thirty days within which to apply to the (‘haneery court for amendment of the bill.

Reversed, rendered and remanded.