The Montgomery advertiser., 1903-12-23
HARDEN V. UoLLrNs.

Action or Unlawful Detatner.-Appeal
 from the Circuit Court of Coosa.
 1. Foreclosure of mortgage; executed by tenants in common; demand for pos session must be made upon each of the co-tenants.-Where land owned by two persons as tenants in common is mort gagged and said mortgage Is foreclosed, demand for possession by the purchaser at the foreclosure sale. the refusal of which will destroy the right of redemp- ton, must be made upon each of the ten- ants in common; and a demand upon one tenant In common Is not such a demand upon the other in this connection, as im- poses a duty upon her other co-tenant of surrendering possession; and 1t Is of no consequence that the tenant fin common upon whom the demand Is made happens to be the husband of the tenant upon whom no demand is made.
 g. Foreclosure of mortgage; executed by tenants fin common; right of redemption Where a mortgage upon land executed by tenants in common is foreclosed. the right of one of the tenants in common payment or tender to such purchaser of the full amount paid by him at the fore closure sale and 10 per cent per aunum thereon. together with all lawful charges, Is not affected or destroyed by reason of the fact that the other tenant in common refused to surrender possession of said land upon demand by the purchaser. if no demand for possession was made by the purchaser upon the co-tenant seeking to redeem.
 g. Redemption by orc tenant in com mon; right extends to land in it's entire ty.-Where land has been sold under a mortgage executed by two tenants in common. either one of them may exercise the statutory right of redemption; and this right to redeem extends to the land in its entirety, and not merely an undi- vided interest therein.
 4 Statutory right of redemption; suf- ficiency of tender; unlawful detainer.-If. after a sale under a mortgage executed by two tenants in common, one of the tenants in common having the right to redeem offers to pay to the purchaser the full amount paid by him at the foreclosure sale and 10 per cent per annum thereon, together with all lawful charges offering to leave the ascertainment Of the amount of the lawful charges. including the value of the purchasers permanent improve ments upon the land to disinterested par ties. and the purchaser declines such proposition absolutely, such tender is suf ficient under the statute Code. Sec. S50D to vest the title to the lands in the tenant in common so offering to redeem, in such sort as to entitle her to recover posses sion of said property.
 5. Same; same.-Where, after land is sold under a mortgage. a mortgagor ten- ders to the purchaser the amount paid by him with 10 per cent per annum there on and all lawful charges. including per manent Improvements. and offers to leave the entertainment thereof to disinterested parties and pay the amount found by them. if the defendant would pay rent for the land at stipulated price; such ten der Is insufficient and inetficacious to in vest the title in the mortgagor seeking to redeem.
 G. Statutory right of redemption; un- lawful detainer; charge of court to jury. In an action of unlawful detainer by mortgagor against the purchaser at a foreclosure sale, where issue tried was whether or not the tender made by the plaintiff and refused by the defendant was sufficient to invest the title in the plain tiff if the evidence was in conflict as to whether or not the tender was accompa- nied with a condition as to the payment of lawful charges including permanent improvements. and it was a matter of inc ference and deduction by .mo jury from the evidence as to whether there was positive offer to pay such lawful charges, 1t Is arror for the court to instruct the jury either that the offer to pay for the Improvements was not conditional, or that it was sufficient, though 1t was cond- tionaI.
 2. Mortgage: purchaser at mortgage sale can not deny mortgagor's original estate in land.-The purchaser of land at q foreclosure sale under a mortgage, hold ing under a Inortgagor, can not tender the mortgagor's original estate in the land in an action of unlawful detainer brought by such mortgagor against him.
 Reversed and remanded.
 Opinion by Mcclellan, c. J.