53 So. 1006 | Ala. | 1910
By his hill appellee sought to foreclose first and second mortgages on appellant’s tract of land, and had relief as to both. No error is assigned upon the decree in respect to the second mortgage.
Defendant, Tony Baker, had formerly owned the land, but had lost it by foreclosure. He had no interest whatever in the land nor any right concerning it. The transaction in question had its origin in his effort to repurchase. He went first to Judge Russell who represented the nonresident owner. By Judge Russell he was advised to go to some neighbor who would be able and willing to make arrangements for him. He went to complainant. The extent of what followed as shown by the paper writings, is that complainant, on February 8, 1904, purchased the land from the nonresident owner taking a conveyance of the absolute fee. On April 29, 1904, he entered into an agreement with defendant by which he undertook to make a deed upon the payment by defendant of $225 in installments of $75 payable October 1st, next, and annually thereafter. On October 20, 1904, defendant paid $100, and complainant made his deed on the consideration previously agreed upon, and at the same time took defendant’s mortgage to secure a recited balance of $150. Defendant’s contention is that the purchase price paid by complainant was a loan to him (defendant), that complainant’s purpose in taking title was to secure this loan, and that the excess secured by the mortgage over the price paid by complainant was a device to cover usury. On this theory, and on testimony in support of it, defendant asks relief in his cross-bill. Complainant’s testimony is that the several writings express the whole truth of the transaction. This branch of the case might well be disposed of on the ground that defendant had failed to sustain the burden of proof which rested upon him in the premises
The decree below directed that the sum of $100, paid as above noted, be credited upon the principal then due and to become due, decreeing the foreclosure for the balance of the agreed purchase price, $125, without interest. The ruling was that the contract of security here sought to be enforced was usurious — a ruling in favor of the appellant. The taking of the mortgage did not affect the complainant’s original debt or his right to interest thereon, or' any remedy he might have for recovery of the same apart from the mortgage, but affected only, we take it, the security now in suit.
Appellant insists that he was entitled to recover costs inasmuch as complainant was denied interest because usury had been reserved in the manner already pointed out. Before the bill was filed the parties negotiated for a settlement. Defendant expressed a willingness to pay the debt secured by the first mortgage, but complainant would not enter into any settlement that would not embrace the indebtedness secured by both. There was no suggestion of usury at that time, nor was any tender
We need not consider those assignments of error Avhich relate to rulings on evidence. That excluded as Avell as that admitted is to be found in the transcript, and, if all those rulings complained of had been different, the result would not have been otherwise.
Let the decree of the chancery court be affirmed.
Affirmed.