Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-20
SUPREME COURT.
Condensed Decisions, Reported for
the Memphis Appeal by H.
Clay King, Esq.

No. Al. John b. Hill VS.. VIM. Walk
er & Co. From Memphis Chancery.
Smith, Judge, delivered the opinion
of the Court.
On the 9th of February, 1857, Sarah
Law sold and conveyed to VIM. Walk
er by deed three lots of land near
Memphis. Walker joined in the deed.
| The deed recites that Walker executed
his several prOmissory notes for the
purchase money, falling due at sue
cessive dates, and for the security of
which the said Law retains an express
lien on the lots, with power on behalf
of herself or any assignee of said notes
in case of their nOn-payment, to sell
said lots to the highest bidder for cash
at public auction, to make deeds, etc,
Waiving all right of redemption.
Three Of the notes having fallen due
and not being paid, Law sold and con-
Veyed the lots to John H. Rawlings
for S1l63. The sale was made in the
absence of Mrs. Law, and was con-
Quoted by Smithwick, employed by
her for that purpose. On April %,
1888, Rawlings sold and conveyed the
lots to Niles MerriWether for Valua-
BILE consideration. On March ., 1858,
one AIiItenberger received, in the Law
Court of Memphis, against Walker,
Judgment for 5000. Execution issued,
and was returned nulla bona. On the
- day of February, 1859, Miltenber-
ger assigned the Judgment to John B.
Hill. November 3, 1859, Hill rendered
to Merriwether $500 and demanded
to redeem the lots. Merriwether re-
fused to receive the money, and de-
MED the right of Hill to redeem.
Thereupon Hill filed this bill to re-
deem, and to subject the lots to the
payment of the Judgment. The bill
alleged the tender to MerriWether,
and an offer to credit said Walker
with the whole amount of said judg-
ment. The answer admitted the ten
der, but failed to respond to the charge
of the offer to credit.
Held: /. Grave doubt is felt as to
the correctness of Cherry VS.. Bowen,
) Sneed, Ala, as to thepower of a debt
or to waive his right to redemption,
before the Code, which power was de-
MED in that case, but no opinion Is
given on that point.
,. The Code ana the act of 1872 on
the subject of redemption are sub
stantially the same, and for that Tea-
son it is unnecessary to decide Wheth-
er the act of 1912 or the Code governs
this case.
3. Under either it is requisite that Il
creditor proposing to redeem from
purchaser shall pay to him the lawful
amount, and shall also pay to the
debtor or credit his debt with theten
per cent. required by law. The law
exacts strict c9fDpiianGe with the
terms prescribed by the statute, 9th
erwise the right to redeem cannot be
enforced. Mart. & Yer, 80; 10 Yer,
I33, 1876; Hum. 32j; Hum, 3S9;
3 Head, GS6; Yer, 242; Cold, 2l5.
1. There is no proof that such pay
ment or credit was made; and the an
swer not being responsive to the allie
cation of the bill on that point, the
plaintiff was bound to establish the
same by proof.
:. No precise mode will now be laid
down in which the credit must be
given. The Code preScribes the mode
when an advance is made on the bid,
by deposit of a receipt in the proper
office. The Court is not prepared to
say a like method must he pursued in
case of redemption; but it cannot be
left to rest unknown in the bosom of
the creditor. 1t must be aScertained
and expressed in some manner capa-
Bile of proof and disprOOf-by some
positive act. The better method is by
a deposit of receipt in the manner
required in the case of an advance.
s. The sale of Rawlings was not in
valid by reason of the sale being con-
Quoted by Smithwick. He was en-
ployed by Mrs. Law for that purpose.
The deed was executed by her. Her
power of sale under the deed was
power coupled with an interest. ,
Wash. Real Prop, 19S; Gill, 403; 8
Grafton, 5S4. The power has nothing
of trust or confidence in it, as her as
signee would be clothed with the same
power ofsale. The donee ofthe power
was n woman, and it may we'll be pre-
sumed that it was not intended by the
parties to the contract that she should
conduct the sale in person. StOry's
Agency, sec. If, n. 8; Levin on Trusts,
32I; Tiffany & Bullard OR Trusts; 537 !;
+ Iittell, 392. DeCree below reversed
and bill dismissed.
No. II. Davenport vs., Harbert,
From Memphis Chancery,
Where a mechanic filed his bill I'M
der the Code to enforce his lien on a
Ieasehold interest and the buildings
thereon. to which bill the lessee and
the owner of the lot were made par
ties, and a decree was rendered sub
iecting the term and the buildings to
sale. A pro confessO having been ta-
ken as to the owner of the lot, and he
having failed to resist the sale of the
buildings, he will not be allowed by
subsequent proceedings to enjoin the
purchaser from removing the build
ings, who had purchased the term and
buildings under the decree. But the
Court is inclined to the opinion that
in such a case the mechanic has the
right to enforce his lien on the build
ings as well as on the lot, and that the
purchaser would have the right to re-
move the buildings erected by the
mechanic, Notwithstanding any rights
to the contrary between lessor and
| lessee,