88 Ala. 300 | Ala. | 1889
This case has been twice before in this court, on appeals by the complainants and defendants, respectively, from decrees of the Chancery Court on demurrers to the bill. — Smith v. Conner, 65 Ala. 371; Conner v. Smith, 74 Ala. 115. On the last appeal, the averments of the bill as to the items of credit claimed by the complainants against the mortgage debt were held to be insufficient. A state of the testimony indicated by the bill and. exhibits was also adverted to by this court, and held to render the bill multifarious, assuming that the facts indicated would be the proof in the case; and the decree below, sustaining demurrers and dismissing the bill in vacation, without allowing complainants an opportunity to amend — and on this ground solely — was held erroneous, and reversed, and the cause remanded.
In the further progress of the case, the bill was amended so as to obviate the objection for multifariousness, to specify the credits claimed originally by the grantor of the complainants, and to allege that these claims had been transferred and assigned by him to the complainants before the sale of the property sought to be redeemed, by the trustee under the mortgage. The amendments further aver, that complainants have ever since owned, and still own said claims, and that, before said sale, they notified the trustee of their ownership of the equity of redemption, and these items of credits, and their claim that nothing was due on account of the indebtedness secured by the instrument. The original bill was filed February 17, 1877. The amendments, since the case was last in this court, were filed on June 5, 1885, and July 30, 1887. To the last amendment it was demurred, that its averment in regard to the assignment by ¥m. H. Moore — the grantor in the deed of trust, and of the complainants — of the claims he held against Smith to the complainants, was a departure from the case made by the original bill, and repugnant to paragraph 9 of the amendment of June 5, 1885, to which it purported to be an addition. And to both amendments it was demurred, that the claims and demands relied on to reduce or liquidate the debt secured by the deed of trust were barred by the statute of limitations, and that the claims were for unliquidated damages in such sort that they could not be the subject of set-off against the mortgage debt.
These several demurrers were sustained, and from the decree in that behalf this appeal is prosecuted,
The averments of the bill are insufficient to present the claims based on the conversion of certain mules — three in number — and certain corn and cotton by Smith, in the light of partial payments on the mortgage debt. As the facts are stated, it may be conceded that these claims are for damages resulting from a tort committed by Smith, and do not spring out of the contractual relations of the parties, so as to constitute matters of recoupment. But it by no means follows that these several items are not the proper subject of set-off against the mortgage indebtedness. It is quite an error to suppose that these demands necessarily sound in damages merely, within the language of our statute of set-off. It is true that an action of trespass de bonis asportatis would lie for their recovery, and it is also true such an action sounds in damages merely. But it is equally true, that trover would lie; and in that action the law furnishes a standard by which the damages may be admeasured, and the recovery regulated and limited. — Curry v. Wilson, 48 Ala. 638. Damages capable of being thus measured by a pecuniary standard, may be the subject of set-off at law under section 2678 of the Code. — Cage v. Phillips, 38 Ala. 382; Sledge v. Swift, 53 Ala. 520; Collins v. Green, 67 Ala. 211. And any demand which a mortgagor might set off against the secured debt, in a suit at law for its recovery, he may set off against the debt when it is sought to be enforced in equity by a bill to foreclose the mortgage. — Gafford v. Proskauer, 59 Ala. 264; Knight v. Drane, 77 Ala. 371. Anda set-off may be relied on by the assignee of the equity of redemption, to reduce the charge on his land, although no personal judgment can be had against him. — Wiltsie Mort. Fore., pp. 452, 453, § 378. And it is no objection to a claim pleaded as a set-off that the mortgagor, or owner of the equity of redemption, acquired it after the law-day. It may be availed of, if acquired at any time before steps are taken on account of the default of payment, according to the terms of the instrument. — Martin v. Mohr, 56 Ala. 221.
On the case as now presented, therefore, our conclusion is,
It can not be denied that, had a bill been filed to foreclose the deed of trust, and sell the land to satisfy the debt secured by it, the complainants could have interposed in that suit the cross demands they had against the beneficiary in the deed, notwithstanding the bar of the statute had been perfected against them as independent causes of action, before the filing of the original bill. Shall this right be defeated, and the benefit of the exception to the statute of limitations be denied to the complainants, because, instead of proceeding by bill, the election was made to foreclose by a sale under the power, and the complainants forced to take the initiative in the courts ? Do the mere facts that the instrument contains a power of sale, and that foreclosure is sought by the exercise of that power, cut off any substantive defense which the holder of the equity might otherwise have relied upon ? Or, to put the same matter in another way, can the circum
If the claim of $500 for damages, because Smith defeated Moore’s right of election to purchase certain mules, is to be regarded as a set-off, it would be governed by the principles held above to be applicable to the items for conversion of property by Smith. That claim, however, is one of recoupment rather than set-off. It sprung out of the contract between the parties, and is based on the right that one party has to reduce the claim preferred against him by the other, under the contract, by the amount of damages he has sustained from a breach of that contract by that other. — Waterman on Set-off & Recoup., pp. 478 et seq; Mayberry v. Leach, 58 Ala. 339; Washington v. Timberlake, 74 Ala. 259. Such a claim runs with the contract, so to speak, and may, at least when it goes to the consideration, as it generally does in some sort, and as in the case here, be relied on without regard to the statute of limitations. So long as the contract, upon a breach of which the claim is predicated, subsists, and may be enforced, the claim itself may be pleaded in reduction, at least, of the demand on the contract; and this notwithstanding the matter of recoupment, independently considered, may be barred, not only when it is pleaded, but also when the right of action, against which it is asserted, accrued. — Wood on Limitations, pp. 602, 603, § 282.
It results from these views, that, in our opinion, the assignments of demurrer were not well taken, and each of them should have been overruled. Several other considera
Reversed and remanded.