It appears from the face of this bill, filed by an erstwhile mortgagor to effect statutory redemption (Code, § 5746 et seq.) from the mortgagee who purchased one tract only of the two tracts sold under the power of sale contained in the mortgage, that the statutory redemption sought by the bill is only of that part of the property described in the mortgage which the mortgagee purchased at the sale under the power to that end, and not the redemption of all of the real property sold under the power; the other distinct lot or tract being bought at the sale by a stranger to whom conveyance of it was made. The equity of the bill was challenged upon the ground that statutory redemption cannot be availed of unless it is sought of and for *Page 523 the entire land sold under the single power contained in the mortgage. The learned chancellor concluded against this contention, and so overruled the demurrer. As appears, the question made goes to the primary right, so to speak, to redeem, and not to the obligations, precedent or concurrent, to perform which are necessary to effect the redemption the statutes contemplate. I am of the opinion that the bill is without equity, for the reasons to be stated.
It has been repeatedly decided by this court that statutory redemption cannot be effected by piecemeal, meaning thereby, as I understand it, that statutory redemption is a single, indivisible privilege which, to be available, must comprehend in its exercise all of the real property sold in the execution of the trust created by the instrument of mortgage. Francis v. White, 160 Ala. 523, 49 So. 334; Cowley v. Shields, 180 Ala. 48,60 So. 267; Morrison v. Formby, 191 Ala. 104, 106,67 So. 668; Lehman v. Moore, 93 Ala. 186, 189, 9 So. 590. In Lehman v. Moore, supra, a decision delivered in 1890, since which time the pertinent statutes have been re-enacted without change affecting this question, it was said.
" * * * The statute itself provides for and requires the redemption of whatever interest passed by the foreclosure sale."
The decision of this court (second appeal) In Francis v. White, 166 Ala. 409, 52 So. 349, is not authority for the conclusion supporting the piecemeal redemption sought to be effected through this bill, and so for the reason aptly stated in Tribble v. Wood, 186 Ala. 334, 65 So. 75, in evident definition of what was ruled in Francis v. White, 166 Ala. 409,52 So. 349, as follows:
"Redemption by piecemeal cannot be enforced, but there is no reason why redemption in parcels may not be had; the holder ofthe redeemable title being willing." (Italics supplied.)
In the case at bar "the holder of the redeemable title" is not shown to be willing to the redemption, nor is any claim made that he was or is willing to the redemption of a part only of the property sold under the single, indivisible exercise of the right of sale under the power contained in the mortgage. Indeed, he has all along persisted in resisting the redemption. The application of this, as it seems to me, new rule to other cases, readily to be imagined and often occurring, will disclose its fault and capacity to create confusion, from which no escape can be logically, reasonably, found. *Page 524