Seals v. Rogers

ANDERSON, J.

Under the decisions of this court, based upon the statute as it existed prior to the adoption of tbo Code of 1907, it was held that a party entitled to effectuate the statutory redemption of real estate must not only show a tender of the amount required by the statute, or a good excuse for the failure, but must accompany his bill to redeem by the payment of the money into court and offer to abide the decree of the court, which is indispensable to the equity of the bill to redeem. — Murphree v. Summerlin, 114 Ala. 54 , *654 21 South. 470 ; Beatty v. Brown, 101 Ala. 695 , 14 South. 368 ; Beebe v. Button, 99 Ala. 117 , 12 South. 567 ; Burke v. Brewer, 133 Ala. 389 , 32 South. 602 ; Baker v. Burdeshaw, 132 Ala. 166 , 21 South. 497 .

The hill in the case at bar neither avers a previous tender nor the payment of the money into court, notwithstanding an itemized statement of the amount due was furnished before the bill was filed. It is true it was not furnished within 10 days after the demand, as required by section 5748 of the Code of 1907, and what effect this section and amended section 5751 may have on cases arising since the enactment of same we need not determine, as they cannot control the case at bar. The sale in question was made before the Code of 1907 went into effect, and section 5748 and the change in section 5751 first appeared in said Code. Section 10 of the Code of 1907 expressly provides that the adoption of the Code shall not affect any existing right, remedy, or defense. The purchaser at the mortgage sale and his vendee had a right to be compensated for improvements and a remedy for the requirement of a tender and the payment of the money into court as a condition precedent to the exercise of the statutory right to redeem, and which is not a mere matter of form or pleading, evidence, or amendment as is sanctioned by said section.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.