Richardson v. Dunn

79 Ala. 167

• Court: Supreme Court of Alabama
• Decided: December 15, 1885
• Status: Published

Opinion

SOMERYILLE, J.

If we admit the principle, that where the lands of a judgment debtor have been sold under execution, and he tiles a bill to redeem under the provisions of the statute, the bill is wanting in equity, where it shows that he has continued in the actual possession of the lands, without offering to surrender such possession to the purchaser within ten days after the sale, unless by consent of-such purchaser; this can not be the rule, where the lands are shown to be in the possession of a tenant. The statute expressly provides for a case like this, in the following language. After declaring that “the possession of the land must be delivered to the purchaser, within ten days after the sale thereof, by the debtor, if in his possession, on demand of the purchaser, or his vendee,” it is added : “If the land is in the possession of a tenant, notice to .-him by the purchaser, or his vendee, of the pnrchase, after the lapse of ten days from the time of the sale, and that it has not been redeemed, vests the right to the possession in him, in the same manner as if such tenant had attorned to him.” — Code, 1876, § 2878. The legal effect of such notice, when given, isto constitute the tenant in possession the. tenant of the purchaser, and thereby to abrogate' his fealty to the former owner, transfer liis possession to the-purchaser, and substitute the latter as his future landlord, with the ordinary rights growing out of this relationship.—Comer v. Sheehan, 74 Ala. 452, 458. The bill avers the facts, that the land sought to be redeemed was in the possession of tenants; that the defendant had given the statutory notice to them, and had since that time been collecting the rents without molestation. This was a sufficient averment of a transfer of the possession of the lands to the defendant, and an offer to surrender under such circumstances was more than nugatory.

The bill, it is true, does not offer to redeem one of the lots, which was supposed to have been sold by the sheriff under the execution; and objection is taken to this, by demurrer. It is averred, however, that the complainant never had any title or interest in this lot, and therefore none was purchased by the defendant which he could redeem. The facts are stated which show this to be true. Ny> deduction from the amount of the purchase-money is asked on this account, but the tender made was for the whole amount bid, with ten per cent, per annum, and other lawful charges. This objection is clearly without merit.

The amount paid by the defendant for insurance against fire was not a lawful charge for which he was entitled to reimbursement. Nor was the amount of the justice’s judgment purchased by him from. Brewer & Co., unless execution had been issued on it, and levied on the lands, so as to constitute a lien .on them. The phrase “lawful charges,” as used in the statute, has been construed not to include any claim or demand held by the purchaser, except such as may be in the nature of a lien or incumbrance on the land.—Parmer v. Parmer, 74 Ala. 284, 289, and cases there cited.

If it be true that the complainant should have prepared and tendered a deed of conveyance to the defendant, for his signature, and that, in ordinary cases, this fact must be averred in a bill to redeem, in order to give it equity; it may be answered, that the bill avers a denial on the part of the defendant of complainant’s right to.redeem in any event, and this would be a sufficient and valid excuse for failing -to prepare and tender such deed, which, it must be presumed, would have been entirely fruitless.

The decree of the chancellor, overruling the demurrer, and refusing to dismiss the bill for want of equity, is free from error, and must be affirmed.