Moore v. Gore

35 Ala. 701

• Court: Supreme Court of Alabama
• Decided: January 15, 1860
• Status: Published

Opinion

A. J. WALKER, C. J.

-Section 2120 of the Code says, that judgment creditors may redeem land sold under ex'ecution, “ by paying, or tendering, the amount bid for such land at the sale thereof, and ten percent, per annum thereon, -together with all lawful charges; and by further offering to credit the debtor, upon a subsisting judgment, with a sum at least equal to ten per cent, of the amount originally bid for the land ; and upon such payment or tender being made, and credit actuall}7 given to the debtor, the title to such land vests in the creditor, and the purchaser must convey to him such title as he,has, at the costs of the creditor.” This section naturally divides itself into two clauses; the former specifying the terms upon which a right of redemption is acquired; and the latter specifying the pre-requisites to the vesting of title in the party redeeming, and to the execution of a conveyance to him. The former clause requires an offer to credit the debtor, and the latter requires the actual giving of the credit. Under the former clause, the party seeking to redeem acquires a right to go into chancery, and compel a conveyance by the purchaser, who refuses to permit a redemption. The latter clause gives him a privilege of going farther, and vesting himself with the legal title, by actually giving the credit, and making the prescribed payment or tender.

The statute was not designed to require imperatively, as a condition precedent to the right of redemption, that the credit of ten per cent, should be actually given, when the purchaser refused to assent to the redemption. It permits the party desiring to’redeem, to make the requisite tender, .and offer to credit; and, if the purchaser refuse, to go into chancery, and coerce a conveyance from the purchaser, upon his making the payment and giving the credit.

If we were to sustain the argument, that no equitable right to a redemption vested by making the tender and offering to give the credit, we should do violence to the former clause of the statute, which declares, that the creditor may redeem, by making the necessary payment or tender, and offering to credit the debtor with the proper sum. By construing the former clause as giving a privilege to acquire a right to a redemption, through the agency of the chancery court, as against a refusing purchaser, and the latter clause as conferring the privilege of going still farther, and actually giving the credit, and thus acquiring a legal title, we give effect to all the words of the section. This construction also harmonizes that section with the following section.

[2.] Section 2123 provides, in general terms, that the creditor has “ the right to recover the possession of the laud, before a justice of the pieace, for an unlawful detainer.” . This section was doubtless designed to afford an expeditions remedy to a creditor, who has vested himself with the legal title, for the recovery of the possession. Neither it nor any other section contains any wbrds tending to exclude the jurisdiction of the chancery court to enforce the equitable right, which we have decided may be acquired. The fact that the statute has given the privilege of going on and acquiring a legal title and a summary remedy to recover possession after the acquisition of such title, does not, in the absence of any prohibitory or restrictive words, exclude the jurisdiction of the chancery court. — Waldron v. Simmons, 28 Ala. 629; Owen v. Slatter, 26 Ala. 547; Brewer v. Br. Bk., 24 Ala. 439. We do not intend by anything which we have said to convey the idea, that there are no other circumstances .under which one seeking to redeem might go into equity, and we leave that question open.

The chancellor erred in sustaining the demurrer for want of equity, and.his decree must be reversed, and the cause remanded.