On Rehearing. The court did not discuss the effect of section 10144 of the Code on the right of the wife seeking to redeem the husband's lands to protect her inchoate rights under a statutory redemption. Sections 10140, 10143, Code; Thomas v. Blair,208 Ala. 48, 93 So. 704.
In Johnson v. Davis, 180 Ala. 143, 146, 60 So. 799, 800, is the expression, "that, in order to redeem under the statute, the complainant must make a tender or show a sufficient excuse for a failure to do so." (Italics supplied.) This was where a bill was filed by the trustee in bankruptcy to redeem land sold at mortgage foreclosure. And in Johnson v. Williams, 212 Ala. 319,320, 102 So. 527, 528, is the observation that: "A resort to equity is only necessary when (1) the creditor or purchaser (a) refuses to accept the tender and to convey, or (b) declines to inform the debtor or redemptioner of the amount necessary to be tendered, when known to him and not to the debtor or redemptioner; or (2) it is impossible or impracticable for the debtor or redemptioner to conform to the requirements of the statute without the aid of a court of equity."
The circumstances held sufficient are illustrated by our cases as collected in Johnson v. Williams, supra, and Cummings v. Vann, 215 Ala. 488, 111 So. 229, where unlawful charges were included in response to the demand for a statement. Toney v. Chenault, 204 Ala. 329, 85 So. 742.
In the case of Fellows v. Burkett, 219 Ala. 601, 122 So. 808, the bill for redemption was by the widow to protect her interest in the husband's lands, and there was demand from defendants for a statement in writing of the amount necessary to redeem and illegal items and claims made; held to excuse tender. And in Faulk v. McDuffie, 215 Ala. 584, 586,112 So. 229, 230, the wife made the demand for a statement and there was a failure or refusal to comply. The court said: "The wife made demand of Faulk for statement of all lawful charges necessary to payment and redemption without suit in equity, and there was failure or refusal to comply. The wife may therefore file her bill, without making tender, offering and averring her ability to pay the debt and all lawful charges. Slaughter v. Webb, 205 Ala. 334, 87 So. 854; Gay v. Taylor, 214 Ala. 659,108 So. 853. A waiver or forfeiture or estoppel of the right of redemption by the mortgagor, without more does not bind the wife who in good faith asserts her statutory right."
We should have observed on the original hearing that we are shown no case declaring the right to redeem under the statute by a wife where she has made no effort to comply with the provisions of section 10144, Code, as it is made to apply to any one desiring and entitled to redeem. Gen. Acts of 1911, p. 391. § 1.
The bill as originally filed and as amended made no allegation of compliance and alleges no excuse for the failure. It was, no *Page 495 doubt, the intention of the pleader that the allegation thatthe mortgage debt was paid in full before foreclosure was sufficient to excuse the failure to demand statement or make tender.
In the original opinion the subject of the bill filed to enforce the equitable right of redemption was "and the amount is disputed," and an averment of a prior tender is not necessary, where there is submission to the jurisdiction of the court, an offer to do equity in the premises, and an offer to pay all sums found due on the accounting. This was not the saying that the rule of statutory redemption may not be observed or not complied with, without recognized just cause.
The appellees correctly observe that there has been no discussion of this phase of the question, and on rehearing invoke consideration and an expressed pronouncement thereon. This we should have done for a proper guidance to the parties at interest and for the lower court in proceeding to a final decree.
The mortgages embraced the lands of the husband and wife. Redemption may not be done by piecemeal, and must be effected of the entire tract, the subject of the foreclosure. The existence of a debt was denied by the husband and the wife, and under the averments of the bill as amended a discovery and an accounting alleged to be necessary to determine whether there was a judgment for indebtedness to the complainants or to the respondents. The complainant wife submitted herself to the jurisdiction of the court and offered to do equity in the premises as required by the final decree.
In Snow v. Montesano Land Co., 206 Ala. 311, 89 So. 719, the purchaser had conveyed the land in several parcels, and it was necessary to ascertain the several and separate amounts required to effectuate redemption; held as a sufficient excuse for redemption, the failure to make demand, payment, or tender. This case for the wife is within the rule that it was impossible or impracticable for the wife as redemptioner to conform to the requirements of the statute without the aid of a court of equity. Johnson v. Williams, 212 Ala. 319,102 So. 527; Francis v. White, 160 Ala. 523, 49 So. 334.
We are still impressed that the wife's land was inserted in the $750 mortgage as a suretyship for the husband in his litigation with and settlement of his debt to Baker Bros. and settled through Hines or the bank. The land was conveyed to the wife in 1922; Baker sued G. W. Dewberry to judgment on September 5, 1923, execution issued thereon October 16, 1923, and the lands of Mrs. Lola Dewberry, the wife of G. W. Dewberry, were levied upon and sold February 24, 1924, and purchased by the Bakers, the plaintiffs in judgment. On the 26th day of July, 1924, these judgment creditors — purchasers — brought a suit in ejectment against G. W. Dewberry and Mrs. Lola Dewberry to recover the possession of Mrs. Dewberry's land (not the land of G. W. Dewberry), and judgment was rendered by agreement (of defendant husband in that suit with the Bakers) in favor of the plaintiff. It was recited therein that if within a few days (about 15 days) the defendants (one of whom was the wife) paid plaintiff $650 (on its debt against G. W. Dewberry, the husband) and one-half the costs, the title to the land would be vested in Mrs. Dewberry. She already had the legal title thereto; and, if Baker desired to challenge or set aside her old deed, this was not the procedure to that end. The testimony shows that the bank, at the instance of Dewberry, and with full knowledge of the facts, and to aid and support its mortgages for large amounts on these and other lands of the husband, gave credit to Baker Bros. for $650, and they executed, on September 24, 1924, a quitclaim deed to Mrs. Dewberry. There was no effort on the part of the Bakers to set aside Mrs. Dewberry's deed acquired in 1922.
Mr. Baker testified that he had known G. W. Dewberry 40 years, but did not know his wife — "would not say he had ever seen her" — that he bought cotton from G. W. Dewberry from 1919 to 1922; that he started and conducted a litigation with him in 1922 to 1924; settled same in court by a judgment for $1,200; that it was a "compromise settlement"; that the judgment was not against his wife (Lola Dewberry), but "was against him alone"; execution thereon was levied on "his wife's land or land that she claimed to own" of the 128 acres; that he and his wife claimed the land as that of the wife; that "the records of the court showed that it was her land; that he was paid on a compromise settlement $600 or $650, that Hines brought the money to plaintiffs or rather "a check or deposit slip" in part payment of the judgment; that he did not "accept it as a full settlement"; that it was settled in a way, but they were to take $600, "then if we could get any more we were to get it"; that they "never got any more"; that they "had judgment for $1,200.00. * * * we got about $650.00"; could not say whether the judgment was satisfied of record; that Hines and the attorneys down there "made settlement" or "worked it up"; that witness thought the $650 was to be "credited on the judgment." The witness was asked and answered as follows:
"Q. At that time you did not claim to have any judgment or any debt against Mr. Dewberry's wife whatever? Did you, Mr. Baker? A. No, sir.
"Q. And she did not owe Baker Brothers any money whatever? A. No, sir. We never had her name on the books.
"Q. And is it not a fact that this 128 acre tract was levied on because that you found *Page 496 nothing against that land at the time? A. I couldn't say. I think we found it in his name at the time. * * *
"Q. And if the record shows it was satisfied in full you accepted the $650.00 as in full satisfaction of the judgment? Isn't that true? A. How that $650.00, whether that was accepted in full of the judgment I really don't know. I could not swear positively, but I don't think it was.
"Q. Which one of you — did you or your brother handle the matter. Which one of you? A. I did mostly. * * *
"Q. And whatever the record shows with reference to that settlement was authorized by you? Isn't that true? A. I suppose so."
The witness then testified on redirect examination:
"Q. Mr. Baker, you first brought a suit against Mr. Dewberry on an account he owed Baker Brothers, did you not? A. Yes, sir.
"Q. And got a judgment? A. Yes, sir.
"Q. And after you got that judgment an execution was levied on this 128 acres of land? A. Yes, sir.
"Q. It was put up and sold, was it not? A. Yes, sir.
"Q. And Baker Brothers bought it in? A. Yes, sir.
"Q. Then didn't you bring another suit against Mr. Dewberry and Mrs. Dewberry for the recovery of the possession of this land? A. Yes, sir.
"Q. That is the suit was settled? A. Yes, sir.
"Q. Mrs. Dewberry was claiming to own that land? A. Yes, sir.
"Q. You had a deed to it? A. Yes, sir.
"Q. And you brought a suit in ejectment against both of them to recover it? A. Yes, sir.
"Q. And when it was settled you made a deed to Mrs. Dewberry, I will ask you to look at this paper that is marked Respondent's Exhibit 7, purporting to be a deed from J. H. Baker and others to Mrs. L. R. Dewberry, and I will ask you whether or not Baker Brothers and your wives signed that paper? A. We did.
"Q. That is the deed made at the time of this settlement that you are talking about is it? A. Yes, sir.
"Q. And on payment of the $650.00 to you? A. Yes, sir.
"Q. Then it was the ejectment suit that was settled? A. Yes, sir.
"Q. Instead of that old judgment on the account? A. Yes, sir. That is right.
"Q. And this is the deed you gave to Mrs. Dewberry when that second case, the ejectment suit was settled by the payment of $650.00 to you? A. Yes, sir.
"Q. That is what you got for the land you had bought? A. Yes, sir.
"Q. And you made this deed? A. Yes, sir." And on cross-examination:
"Q. The only basis of your claim to the land was the judgment that you recovered against Mr. Dewberry, was it not? A. Yes, sir.
"Q. And not against Mrs. Dewberry? A. We didn't have any litigation, Mr. Smith, with Mrs. Dewberry at all until this land business came up, the second suit.
"Q. Now the settlement that was made was on the judgment that you recovered against Mr. Dewberry? Isn't that true? A. I think so.
"Q. You did not have any judgment against her to settle, did you? A. No, sir. We had no judgment against her. * * *
"Q. You had a suit pending against her at the time it was settled, didn't you? A. Yes, sir, on this land proposition.
"Q. And that is what was settled? A. Yes, sir. She claimed the land after we levied on it.
"Q. And you brought suit for the land? A. We sued for the possession of it. * * *
"Q. But if she did not owe you anything you didn't claim against her anything in the way of a judgment? A. No, sir. We were just suing for the possession of the land. She claimed the land after the Court gave us title to it.
"Q. But the settlement was made in court there on the judgment that you had recovered against G. W. Dewberry? Isn't that true? A. I suppose it was, yes, sir."
All parties at interest were fully informed of the facts and title to the respective land; the bank had large mortgages on both tracts of land to secure the husband's debts, and knew the facts as to his debt to Baker being thus paid or secured in part.
We have again examined the evidence and cannot escape the conclusion that G. W. Dewberry, Hines, the bank, and Baker were but litigating and contracting to the end that the wife's land be made a suretyship for the debt of the husband, covered by the claim of the bank and Baker, and that she did not so intend to do this, nor was she permitted so to do under the statute.
The opinion holds that G. W. Dewberry is not entitled to relief, and in that respect the holding of the lower court is correct. Much of the record dealt with the mortgages on real and personal property of said complainant, whether or not there was a regular foreclosure, demand for possession, etc.
This court is invested with the power to apportion costs as in its discretion are just and right. Manning v. Carter,201 Ala. 218, 77 So. 744; Pitts v. Walker, 212 Ala. 645, *Page 497 103 So. 850. And, after a reconsideration of the apportionment of costs, we are of opinion that the same should be divided between the respondents-appellees and G. W. Dewberry; and Mrs. Dewberry is not subject to taxation of costs.
With this extension and modification of the original opinion, the application for rehearing is denied.
Application denied.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.