Southeast Enterprises, Inc. v. Byrd

720 So. 2d 873, 1998 Ala. LEXIS 60, 1998 WL 57756
CourtSupreme Court of Alabama
DecidedFebruary 13, 1998
Docket1960484
StatusPublished
Cited by7 cases

This text of 720 So. 2d 873 (Southeast Enterprises, Inc. v. Byrd) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southeast Enterprises, Inc. v. Byrd, 720 So. 2d 873, 1998 Ala. LEXIS 60, 1998 WL 57756 (Ala. 1998).

Opinion

720 So.2d 873 (1998)

SOUTHEAST ENTERPRISES, INC.
v.
Jerry H. BYRD, et al.

1960484.

Supreme Court of Alabama.

February 13, 1998.
Rehearing Denied August 21, 1998.

Robert H. Brogden, Ozark, for appellant.

James R. Fuqua and Bill Kominos of Fuqua & Kominos, Ozark, for appellees.

SEE, Justice.

Southeast Enterprises, Inc. ("SEI"), a junior mortgagee, sought to redeem a tract of real property from Jerry and Sharron Byrd, who had purchased the property at a foreclosure sale. In computing the redemption price to be paid by SEI, the trial court began *874 with the purchase price the Byrds had paid; then it (1) added the balance of an outstanding higher-priority mortgage; (2) computed interest on the entire redemption price at the rate of 12%; (3) added permanent improvements made by the Byrds—at cost, instead of value; and (4) denied SEI any credit for the post-redemption rental value of the property or for timber cut by the Byrds. We affirm the trial court's inclusion of the higher-priority mortgage in the redemption price; reverse its computation of interest, its valuation of the permanent improvements, and its denial of credits for timber and rent; and remand.

The real estate consists of over 800 acres of farmland that was at one time owned by Hubert Prestwood, Jr., subject to a first mortgage held by the Farmers Home Administration ("FmHA"), second mortgages held by Hubert Prestwood, Sr., and India Prestwood, and two judgment liens. When FmHA foreclosed, the debt on the property exceeded $1 million. The Byrds purchased the property at a foreclosure sale for $480,000, paying $79,000 from their own funds and $401,000 obtained from a note secured by a mortgage to Colonial Bank.

SEI acquired assignments of at least one second mortgage and one or more judgment liens, thus obtaining a statutory right to redeem the property from the Byrds. See Ala.Code 1975, § 6-5-248. SEI gave notice of redemption to the Byrds and demanded a written statement of the debt and all lawful charges claimed by the Byrds. See Ala.Code 1975, § 6-5-252. The Byrds provided SEI with the written statement, listing numerous lawful charges.

In October 1995, SEI filed a complaint seeking redemption, contesting several of the charges listed on the Byrds' statement. The trial court entered a judgment on September 13, 1996, computing the redemption price as follows:

Purchase price paid by the Byrds
 (including interest at 12%)      $ 593,218.15
FmHA mortgage balance
 (including interest at 12%)        592,986.77
Permanent improvements,
 taxes, etc., at cost               102,972.62
Credits for timber and rent         (   -0-  )
                                  _____________
Total redemption price            $1,289,177.54
                                  =============

SEI moved for a new trial. The trial court denied its motion, and SEI appealed.[1]

I. Balance of Higher-Priority Mortgage

SEI first contends that it is not required to include in the redemption price the higher-priority mortgage owned by FmHA. Specifically, SEI argues that Ala.Code 1975, § 6-5-253, does not require it to pay a higher-priority mortgage that is not owned by the purchasers at the foreclosure sale, the Byrds. See St. Clair Indus., Inc. v. Harmon's Pipe & Fitting Co., 282 Ala. 466, 213 So.2d 201 (1968); Fonde v. Lins, 259 Ala. 553, 67 So.2d 834 (1953); Stewart v. Stephenson, 243 Ala. 329, 10 So.2d 159 (1942); Estes v. Johnson, 234 Ala. 191, 174 So. 632 (1937). We disagree.

After real property is sold at a foreclosure sale to pay the encumbrances on it, various parties may redeem that property from the purchaser by paying the appropriate redemption price. Ala.Code 1975, § 6-5-248. The redemption price includes taxes, the value of improvements, and certain outstanding encumbrances. Ala.Code 1975, § 6-5-253. The cases cited by SEI[2] interpreted the language of former § 6-5-235:

*875 "(3) Any other valid lien or incumbrance paid or owned by such purchaser or his vendee, or any mortgagee of the purchaser to the extent of the amount necessary to redeem."

(Emphasis added.) This language plainly required the redeeming party to pay only those encumbrances "paid or owned" by the purchaser.

In 1988, however, the Legislature repealed § 6-5-235 and replaced it with § 6-5-253, which, in subsection (a), provides that the redemption price now includes:

"(4) Any other valid lien or encumbrance paid or owned by such purchaser or his or her transferee or if the redeeming party is a judgment creditor or junior mortgagee or any transferee thereof, then all recorded judgments, recorded mortgages and recorded liens having a higher priority in existence at the time of sale which are revived under Section 6-5-248(c)."

(Emphasis added.) See Ala. Acts 1998, Act No. 88-441, § 7, p. 647; see also Harry Cohen, The Statutory Right of Redemption in Alabama: A New Statute Is on the Horizon, 39 Ala. L.Rev. 131 (1987) (discussing the then-proposed bill that was later adopted as Act No. 88-441). Unlike its predecessor, § 6-5-253(a)(4) divides encumbrances into two categories: (1) those encumbrances "paid or owned" by the purchaser; and (2) all encumbrances of higher priority. The change in language effected by the 1988 amendment reflects the Legislature's intent to change the computation of the statutory redemption price from that described in St. Clair Indus., Fonde, Stewart, and Estes, supra. The change added to the redemption price paid by junior creditors "all" higher-priority encumbrances, whether or not they are owned by the purchaser. See Ex parte Sizemore, 605 So.2d 1221, 1227 (Ala.1992) ("Having examined the statute [as it read both before and after] the 1986 amendment, we conclude that the legislature could not have been merely reiterating the law as it existed [before the amendment] without meaning to change the interpretations given to the [preamendment statute.]").

The change effected by § 6-5-253(a)(4)'s inclusion of "all" higher-priority encumbrances in the redemption price was clearly intended to prevent financial windfalls to junior creditors. See City of Birmingham v. Hendrix, 257 Ala. 300, 307, 58 So.2d 626, 633-34 (1952) (stating that a court may ascertain the intent of a statute or of a provision therein by looking to the law as it existed before the statute was enacted). By requiring the redeeming creditor to pay off the first mortgage, § 6-5-253(a)(4) prevents SEI, the junior creditor, from vaulting over the holder of the first mortgage, FmHA, to become the possessor of the property. Thus, under § 6-5-253(a)(4), the second mortgagee cannot obtain an interest in the collateral that is superior to that of the first mortgagee without compensating the first mortgagee for the first mortgagee's interest.[3] The trial court correctly included the higher-priority mortgage in the redemption price.

II. Interest

SEI makes two arguments regarding the 12% interest rate used by the trial court with respect to the purchase price and the FmHA mortgage: First, SEI cites Durr Drug Co. v. Acree, 241 Ala. 391, 2 So.2d 903 (1941), for the proposition that the trial court *876

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Bluebook (online)
720 So. 2d 873, 1998 Ala. LEXIS 60, 1998 WL 57756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southeast-enterprises-inc-v-byrd-ala-1998.