91 So. 874 | Ala. | 1921
Appellants executed a mortgage to appellees upon certain real estate which the appellees were proceeding to foreclose, when appellants filed their bill for redemption setting up certain credits and asking an injunction against the foreclosure. The respondents filed answer and cross-bill, denying the credits as claimed by complainants, with the exception of the payment of the sum of $702.61, which respondents insist had already been duly allowed as a credit.
Issues of fact were thus presented for consideration, complainant J. G. Avant testifying to the payment of a note for $150; that he was improperly charged with $210 rent on the "Adams place"; that he rendered services and expended certain sums as shown by his account which should have been credited on the mortgage indebtedness, amounting to the sum of $100; and that the sum of $100 commission due him should also be credited on the mortgage.
Complainant J. G. Avant is a son of D. F. Avant, who died in 1912, and whose will was duly admitted to probate. The respondents are children of W. B. Avant, a son of D. F. Avant, deceased, and who died prior to his father. The heirs and devisees, being of age, executed a power of attorney to J. G. Avant and T. D. Avant (also a son of D. F. Avant, deceased) for the purpose of a division of the estate, and the mortgage executed by J. G. Avant on the lands described in the bill became the property of respondents; and this litigation arises from these circumstances.
The respondents in their answer submit a statement showing the state of the account between the parties. The testimony was heard orally before the court, and the conclusion reached that the account as stated in the answer of respondents was correct, and ascertained therefrom the amount due upon the mortgage, ordering its foreclosure unless the sum so ascertained to be due should be paid within a stipulated time. The testimony of respondents tended to show the $150 was not paid, nor was the $100 commission due complainant, and that he had been given full credit for the $702.61, and that the matter of account for services and any expenditures were for matters not authorized or ratified by them, and for which they were not responsible or chargeable.
The cause presents some few questions, a consideration of which we pretermit, as we are of the opinion the conclusion may well be rested upon the question of the finding of facts by the trial court. It is a well-understood rule that, where the testimony is taken orally before the court, the decree rendered thereon will not be disturbed unless plainly and palpably wrong. Andrews v. Grey,
The testimony in this record has been most carefully read and examined. A discussion of the evidence in detail would serve no useful purpose, nor has it been the policy of this court to do so since the passage of the act of 1915 (page 594). Pilcher v. Surles,
Counsel for appellants insist that the court should have referred the matters in issue to the register to state the account, but the parties submitted the cause for final decree on oral testimony without any request for a reference by either party, and the court decided the questions of fact in favor of respondents. Accepting this theory of the case, the question of ascertainment of amount due was one of very simple calculation and no necessity for a reference to the register appeared. There is nothing in this, therefore, of which appellants can complain.
We are of the opinion the decree should be affirmed, and it will be so ordered.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur. *48
