14 Ala. 114 | Ala. | 1848
The mortgagor of property, real or personal, may sell, or otherwise dispose of the equity of redemption, and the law does not render the mortgagee incapable of purchasing from him. The mortgagor therefore, has the right to sell, and the mortgagee the capacity to buy the equity of redemption. But the principle is settled, and we think in accordance with strict morality, that if the mortgagee use the power his mortgage may have given him, to obtain the equity of redemption at less than its value, and for less than others would have given for it, a court of equity will hold the transaction a mortgage, and permit the mortgagor to redeem. See 2 John. Ch. Rep. 30; 5 Gill & John. 75; 2 Sch. & Lef. 673 ; 1 Ball & Bea. 164; 1 Powell on Mort. side page, 155, and note, N.
The question then for the chancellor to ascertain, when the mortgagor seeks to redeem, after an absolute sale to the mortgagee of the equity of redemption, is, has the mortgagee used his mortgage for the purpose of coercing the mortgagor to sell him the equity'of redemption for less than its value, and for less than others would have given, at a fair sale, and if the chancellor find that such influence was used, in the purchase of the equity of redemption, and that this influence produced the results described, that is, benefit or advantage to the mortgagee, and prejudice to the mortgagor, by selling his right to redeem for less than its value; and less than others would give for it, then he ought to interfere, and hold that the mortgagor may still redeem.
We will now test the record and the evidence by this rule. The answer shows, that Lemuel Pledger, the intestate loaned to Goodman, $377 49, and to secure which the mortgage was executed, bearing date the 21st February, 1833, and the negro was placed in the possession of Pledger, and his labor was to compensate for the interest. Also, that it was agreed by parol, that Goodman might return the money at any time within five years, and take back the boy. That between the
The testimony of Lee is, that some short time after Pledger got possession of Joe, he stated to the witness, that he was to let Goodman have as much as $500, most of which, say $350 or $400, he had already furnished, and that he was to have the boy’s services until the money was refunded, and that Pledger said he did not expect Goodman would ever refund the money; that in the latter part of 1834, or the early pa# of 1835, Pledger had a bill of sale for Joe drawn up, and requested the witness to go with Thomas Goodman, who was the son-in-law of Pledger, and the son of the mortgagor, to the old man to get him to sign it; that if he could get him to sign that bill of sale, that he would have him fixed, or be too fast for him. Witness did not go, but on the return of young Goodman, Pledger told him that he had got the business fixed to his liking. This witness estimates the value of Joe in 1835, at $1,000, and his services at $100 a year.
Jesse Wharton states, that in 1833, he heard Pledger say that he had got the boy of Goodman ; that he was to work for the use of the money; that he let Goodman have some money, and was to let him have enough to make up five hundred dollars in all, for the use of the negro ; that when Goodman paid back the money, he was to have the bo3r, but was not to take him in crop time. Heard Pledger say he had got a new mortgage, or deed of trust for Joe, and had let Goodman have the $500; that, when he returned the money, that Goodman, or any of his children, should have him back, but no one else should have him for that price. The negro in 1835 was appraised at $1,000, but would have sold for $1,200.
The answer also alledges, that the mortgagor was old, and without the means of redeeming at the time, and relied on
We think the testimony of Lee and Wharton establishes that the contract originally was, that Pledger was to lend Goodman $500, and that he was to receive the negro, whose labor was to compensate for the interest; and the answer shows, that it was understood at the time of entering into the original contract, that Goodman might refund the money at any time within five years, and take back the boy. In December, 1834, and before all the $500 was advanced, a bill of sale was prepared by Pledger, and sent to Goodman, without any previous agreement to this effect, with a message, that he had two weeks to determine, whether he would Refund the money, or execute the bill of sale. Goodman was without the means of paying back the money, and this demand, which does not seem to have been authorized by any previous dealings, being made on him, he chose to execute the bill of sale. When it was done, Pledger said he was then fast enough for him, or words to that effect.
Under this proof, we think that Pledger was very anxious to obtain the absolute title ; that he used the power his mortgage gave him over a necessitous mortgagor, to obtain the equity of redemption at much less than its value, and it is therefore the duty of the court, in accordance with the well settled rules of equity, to declare the bill of sale a mortgage, and to permit it to stand as a security for the amount of money actually lent to the mortgagor, or advanced on his account, and which is shown by the answer to be $500.
The negro is dead, but the answer of James Pledger, the administrator, admits the demand of the negro, and the tender, and refusal of the mortgage money, and says nothing about the death of the negro at that time. We are therefore constrained to hold, that the demand of the negro, and tender of the money, was made whilst the negro was alive, and his
The decree must therefore be reversed, and the cause remanded, for further proceedings in accordance with the law as here expressed.