Henderson et al. v. Hambrick et al.

Henderson et al. v. Hambrick et al. Bill' in Fquitif to redeem Lands. 1. - Bill to redeem; rteoeésary averments as to ’ defendants - being debtor. — In order to maintain a bill to enforce- the statutory-right of redemption, it must aver that -the complainants therein we.re of a class of persons privileged by the- statute (Code, § 3505) to exercise the right of redemption; and a'bill which avers that the complainants were defendants in a chancery 'suit wherein the sale from which the redemption is sought was decreed, for the satisfaction of a Vendor’s lien, but does not aver or 'show that the complainants in said ■ suit were debtor .defendants, is subject to demurrer; ' • ... 2. Same; necessary averm'ents as to delivery of possession. — It is . a condition precedent to the exercise of the statutory right .of redemption, that the debtor therein .deliver possession to .the purchaser within ten days after the sale, (Code, § 3506); apd a bill to redeem from a sale, which fails to aver distinctly that the complainant surrendered possession as required by the statute, or fails to give a valid reason for not so surrendering possession, can not be maintained, and is subject to demurrer. ; Appeal from the Chancery Court of Marshall. Heard before the Hoh. -William H. Simpson. The bill in this case was filed on June 12, 1900, by the appellees, James T. Hambrick, Sarah Hambrick, Thomas McCord and' Hattie McCord, against the appellants, Anna J. Henderson and Mary Carlisle, and averred the following facts: That 'on October 14, 1889, one Hugh Carlisle filed his bill against the complainants in the present suit to foreclose a vendor’s lien on a certain specifically described tract -of land; that in May, 1898, a decree was rendered in said cause declaring that said lands were subject to a vendor’s lien, and directing that the same be -sold if the purchase money was not paid in ten days; that on June 13, 1898, after due and legal notice, said lands were sold -by the register' at public auction, and Hugh Carlisle was the highest and 'best bidder, and became the purchaser' thereof for the sum of $467, and that said sale was duly reported to th'e court and -confirmed, 'and Hugh Carlisle received the register’s deed to said land; that in August, 1898, the said Hugh Car-lisle died leaving the defendants in the present suit, Anna J. Henderson and Mary 'Carlisle, his sole heirs at ■ law; that on June 7, 1900, the complainants offered to redeem said lands from said s'ale by jointly and severally tendering to the defendants the'amount bid by Hugh Carlisle at the sale under the chancery decree, together with 10 per cent, thereon and by offering to pay to said defendants all other lawful costs or charges, and requested said defendants to reconvey to them said lands, but that the defendants refused to permit the complainant to redeem from under said sale; that thereupon the complainant deposited with the register in court the amount tendered to the defendants, and they now offer to do equity as the court may direct. The prayer of the bill was that the complainants be decreed to be entitled to redeem said land from said sale upon the payment of said sum as paid by Hugh Carlisle, together with 10 per cent, interest thereon, and all other lawful charges. -The defendants demurred to the bill upon the following grounds: “1st. Said bill of complaint does not aver a delivery of possession to purchasers at sale under decree. 2d. 'Said bill of complaint does not show in which, if either, of complainants is vested the right to redeem. 3d. Said bill of complaint does not show that any one or all of complainants were vendees of the land armed with the right to redeem from sale under decree. 4th. Said bill of complaint fails to show that complainants or either of complainants are debtors, vendees of debtors, junior mortgagees or assignees of the equity of redemption.” Upon the submission of the cause, the chancellor rendered a decree overruling said demurrers. Prom this decree the defendants appeal, and assign the rendition thereof as error. Amos E. Goodhue, for appellant, cited Nelms v. Ken-non, 88 Ala. 329; Pryor v. Eollinger, 88 Ala. 405; Stocks v. Young, 67 Ala. 341; Bondurant v. Sibley, 29 Ala. 572; Sandford v. Ochtalomi, 23 Ala. 572; Paulding v. Meade, 23 Ala. 505. O. D. Street, contra. [MAJORITY — SHARPE, J.] 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.