Eslava v. Elmore, 50 Ala. 587

Eslava v. Elmore

50 Ala. 587 | Ala. | 1874

BRICKELL, J.

A , borrower, seeking from a court of equity relief against a usurious contract, is assisted only on the payment of what is really and bond fide due, deducting the usurious or unlawful interest. In his bill he must offer to pay the sum borrowed, with legal interest, or the defendant may demur, and the bill will be dismissed. 1 Story’s Eq. § 301. -The reason why the court refuses to interfere, unless the bill contains the offer to pay what is justly due, is that, in the absence of such offer, the court cannot compel the complainant to do *590equity — cannot render a decree against him, for the sum he ought in good conscience to 'pay. If the bill contains the offer, the court is invested with jurisdiction to render a proper decree against him. Br. Bank Mobile v. Strother, 15 Ala. 51. The appellee in this case demurred to the bill, assigning specially, as cause of demurrer, that an offer to pay the sum admitted to have been borrowed, with lawful interest, was not made. The bill contains no such offer, and no recognition of the complainant’s liability or willingness to pay, which would authorize the rendition of a decree against her. The demurrer should have been sustained, and the bill dismissed.

In decreeing an account of the mortgage debt, and, in the event of its non-payment, a foreclosure and sale of the mortgaged premises, the court erred. The pleadings do not authorize the rendition of such a decree. The bill contains no submission to the jurisdiction of the court, on which any other than a decree of dismissal can be rendered against the complainant. No cross-bill has been filed, and the answer of the defendant entitles him only to be dismissed the court. The decree of the chancellor is, therefore, reversed, and a decree here rendered sustaining the demurrer of the appellee to the bill of appellant, and dismissing dhe same.

The appellant does not stand in an attitude to invoke the favorable consideration of the court. She has not observed the good faith which the law expects a mortgagor in possession to keep towards the mortgagee. She has permitted the taxes to accumulate on the mortgaged premises, while she was receiving the rents and profits, until the mortgagee was compelled for his own protection, to avoid a sale, to pay them ; and once she permitted them to be sold, as well for the taxes assessed against them, as against other property of hers. The bill was evidently filed without any necessity, and solely to delay the mortgagee. The appellee did not claim the usury, had agreed to abandon it, and was willing to accept the "principal sum loaned, and legal interest. The appellant had full knowledge of this when the bill was filed. A decree must, therefore, be rendered against her, for the costs in the court of chancery, and for the costs of this appeal.