Weathers v. Spears

27 Ala. 455

• Court: Supreme Court of Alabama
• Decided: June 15, 1855
• Status: Published

Opinion

BICE, J.

-There is, at least, one palpable error in the decree of the chancellor. It consists in adjudging, that the defendant convey “ the land" described in the decree to the complainant by quit-claim deed. The statute authorizes the judgment debtor to. redeem only “the interest that may have been sold” at the execution sale. — Clay’s Dig. 502, § 1. The court ought not to have gone beyond the statute. It may be that the defendant owns some other interest than “ the interest” which he acquired at the execution sale. If he does, the chancellor had no authority, under the present bill, to deprive him of it. But the decree, as it now stands, would have the effect to deprive him of it; because the deed, which the decree requires him to execute, will, when executed, deprive him not only of “ the interest” which he acquired at the execution sale, but of all other interest which he may own in the land at the execution of the deed.

As the decree must be reversed, and the cause remanded, for the error above noticed, we take occasion to say, that we cannot see why the chancellor, upon the report of the master, should have decreed that the defendant pay to the complainant $242 60, unless the chancellor supposed it right either to refuse to allow defendant lawful interest on his purchase money from and after the tender and refusal, or to hold him liable for the excess of the rents and profits which accrued before the tender and refusal, over the improvements made. If the chancellor entertained either of these suppositions, he was in error. The rents and profits, which accrued before the tender and refusal, may be set off against the improvements made; but if they exceed the value of the improvements, the defendant is not liable for such excess. He is liable, in such case, only for the rents and profits accruing after the tender and refusal. — Spoor v. Phillips, at the present term. And he is entitled to a credit or allowance for his purchase money, and ten per cent, interest thereon until the tender and refusal, and to eight per cent, interest on the purchase money from the day of the tender and refusal.

The decree is reversed, and the cause remanded, for further proceedings not inconsistent with this opinion.