59 Ala. 535 | Ala. | 1877
The undisputed facts of this case, are, that on the second day of February, 1870, the appellee executed to the appellant a mortgage of real estate to secure the payment of a promissory note, which is copied into the mortgage, and recites that its consideration was an advance made by the appellant to aid the appellee in growing a crop. The note matured—the law day of the mortgage expired, and the appellee voluntarily quit the possession of the premises ; the appellant immediately entering without objection from the appellee, and remained in quiet and undisputed possession, until March, 1876, when he is proceeding to foreclose by a sale in pursuance of a power contained in the mortgage, and this bill is filed. There has been no previous complaint by the appellee of unfairness in the transaction, or of a want or failure of consideration, partial or total, for the mortgage debt. The averments of the bill are, th'at the mortgage debt, except as to the sum of one hundred and fifty dollars, is without consideration, and that the remainder of it, five hundred and eight 50-100 dollars, was intended to cover a debt which the appellant falsely pretended to.be due him from her deceased husband. Relief against this debt, which by the misrepresentation of the appellant she was induced to embrace in the note, is the primary object of the bill. Whether she was aware of the fraud, and of the misrepresentation, at the time of giving the note and executing the mortgage, which seem to have been cotemporaneous; or whether it was subsequently discovered, and if so, when and how, are matters of which the bill and the evidence fail to give us any information: It is averred in the bill, however, that there had been a settlement of all the transactions of her deceased husband with the appellant, and that he had before the making of the note and mortgage paid her a balance remaining in his hands after closing all such transactions. This fact ought at once to have put her on the inquiry, and excited her suspicions as to the truth of the representation. These undisputed facts of necessity raise inferences and presumptions against the case presented by the bill which ought to be removed by clear and convincing evidence.
No relation existed which gave the appellant any controlling influence over the appellee, or from which it can be supposed she reposed in him any greater or other confidence, than she would have extended to any person with whom she was dealing. It is out of the course of ordinary dealing, that one person without inquiry, and without examination, and without knowledge, yet with the means and opportunities of
If we concede her testimony now proves the consideration misreeited in the note and mortgage, and that as to the larger part of the note it is without consideration, and she was induced to give it and the mortgage by the misrepresentation of the appellee, her evidence must be taken with the pre.sumptions against it to which we have referred. These pre
Though the appellee is not entitled to relief, because of fraud, or a want of consideration for the mortgage debt, she is entitled to redeem, and the bill contains the averments necessary to entitle her to a decree for redemption. If redemption is claimed, the appellant should be charged with the actual rents and profits received by him, from the time he entered into possession, and credited with the annual taxes on the premises he may have paid; the balance remaining each year, should be applied first to the extinguishment of the interest on the mortgage debt, and the remainder if any to the principal. The costs should be charged against the appellee. The general rule is, that a mortgagor coming in to redeem must pay costs.—May v. Eastin, 2 Port. 414. We find nothing in the record, to take this case without the rule.
The decree of the chancellor is reversed and the cause-remanded.