Opinion
4 Div. 271.
January 20, 1927.
Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.
T. M. Espy and Farmer, Merrill Farmer, all of Dothan, for appellant.
The answer of defendant does not rely on the statute requiring arbitration as a defense, and the court erred in dismissing the bill on that ground. 16 Cyc. 297, 308; Smith v. McAdams, 207 Ala. 118, 92 So. 411; Jones v. Peebles, 130 Ala. 269, 30 So. 564; Clark v. Johnson, 155 Ala. 648, 47 So. 82; Winkles v. Powell, 173 Ala. 46, 55 So. 536; Magwire v. Tyler, 25 Mo. 484.
D.C. Halstead, of Headland, for appellees.
Brief of counsel did not reach the Reporter.
When a statement in writing of the debt and lawful charges claimed by the purchaser at foreclosure sale of lands, or his vendee, is furnished to a proposed redemptioner, pursuant to Code, § 10144, showing a claim for permanent improvements on the property, and the proposed redemptioner fails or refuses to appoint a referee and give notice of his disagreement to the claim and the name of his referee, pursuant to Code, § 10153, he must pay the value put upon the improvements by the holder of the title subject to redemption. Code, § 10154.
A compulsory arbitration is provided, subject to penalties on both sides; a statutory tribunal for the settlement of that issue is created, to the end that it may be speedily settled and the courts relieved of litigation thereon. This remedy by arbitration is exclusive. A bill in equity based upon a dispute as to value of permanent improvements will not lie on behalf of a proposed redemptioner, who has not complied with the statute as to arbitration. The law has fixed and declared the amount he must tender and pay in such event. Prichard v. Sweeney, 109 Ala. 651, 19 So. 730; Smith v. Jack, 209 Ala. 520, 96 So. 419.
A bill is authorized when the other party is in default in furnishing the statement, in failing to enter into the arbitration, or upon the failure of the arbitrators to make an award without fault on the part of the redemptioner. If other alleged lawful charges, which are controverted in good faith, are included in the statement, so that the redemptioner cannot reasonably ascertain the amount he should tender for redemption, a bill may be filed to settle the whole controversy. The party will not be required to arbitrate the question of improvements, and still have to litigate other charges claimed before he can redeem. Slaughter v. Webb, 205 Ala. 334, 87 So. 854. Without dispute, the complainant wholly failed to comply with the requirement as to arbitration, and the substantial controversy presented by his bill was to determine the value of improvements. No tender was made.
Appellant makes the point that the defense of failure to comply with the arbitration statutes was not raised by demurrer nor by answer, and that the court erred in holding the complainant not entitled to relief, and dismissing the bill upon that ground. Passing over assignment of demurrer No. 5 to the amended bill, which was overruled by the court, the rule is that, where pleading and proof make no case for equitable relief, the bill should be dismissed, although the equity of the bill was not questioned by demurrer or answer.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.