Gerson v. Davis

| Ala. | Nov 15, 1904

TYSON, J.

The bill in this cause seeks to have a certain deed, executed by the complainants to the respondents, declared a mortgage, and to redeem the lands conveyed by it. Its avermeni to this end is entirely sufficient.

The motion to dismiss for the want of equity and the grounds of demurrer, assailing the insufficiency of its averment in this respect, were each proi>erly overruled. So, likewise, were those demurrers invoking the defense of laches properly overruled. The bill was filed within ten years after the deed’ was executed. Whatever may be the rule as to laches, where fraud is relied on to vacate a deed executed by a mortgagor to a mortgagee conveying his equity of redemption, it can have no application, when as here, the (jraramfín of the bill is to have a conveyance, absolute on its face, declared a mortgage.

In such case, the complainant’s right to redeem does not depend upon his repudiation of the deed on account of fraud, but, to the contrary, his asserted right is in recognition of its validity, to the extent that it is binding as a security for the debt he may owe to the mortgagee. — Parmer r. Parmer, 88 Ala. 545" court="Ala." date_filed="1889-11-15" href="https://app.midpage.ai/document/parmers-admr-v-parmer-6513747?utm_source=webapp" opinion_id="6513747">88 Ala. 545.

. In Goree v. Clements, 94 Ala. 337" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/goree-v-clements-6514550?utm_source=webapp" opinion_id="6514550">94 Ala. 337, relied upon by appellants as supporting their defense of laches, the bill was filed by a mortgagor, who had conveyed his equity of redemption by deed as here, but sought under one of its phases to have that instrument cancelled on the ground of fraud. It was to this phase of the case that Justice Olopton was speaking when he held, whether correctly or not is not necessary here to be determined, that the lapse of seven years, unexplained, was a bar to that relief. T-Te, however, distinctly stated that a different rule of limitation governed, as to the other phase of the bill, which sought to have the deed declared a mortgage. In such case, he said, the right to redeem is not barred until the expiration of ten years. Furthermore, what was said by Justice Cdopton on tlie subject of laches was but an expression of his own views, since the decision of the case was distinctly put upon another ground by the other members of the Court.

The objection to the bill on the ground of misjoinder of parties complainant proceeds upon the theory, that one of the complainants has no interest in the homestead of tlie other, which was not conveyed by the deed. Assuming this to be correct, yet both of them have the same interest in having the deed declared a mortgage, which is the main purpose of the bill. They are shown to own the entire tract of land jointly, and to be each liable for the debt, which the deed was executed to secure. In short, both of them haye a common interest in the right of redemption sought by the bill. The remaining assignment of demurrer insisted on challenges the sufficiency of the averment of the eighth paragraph of the bill, on account of the uncertainty of its allegations with respect to the charge of' usurious interest. The relief sought by the.bill is redemption under the deed, which is averred to be, in legal effect, a mortgage, and not on account of usury. It. is undoubtedly true that, when the defense of usury is relied upon, that the pleading- setting up usury must aver distinctly and particularly the elements of usury in the contract, and must state- the amount of usurious interest; and doubtless when the equity of a bill is predicated' upon usury, and relief is sought on that account, the same rule of pleading would obtain. But when, as here, the right to redeem does not depend upon usury, this rule has no application; whether the transaction between the parties involved usury or not can in no wise affect the right of the complainants to redeem. In other words, its .averment, whether sufficient or insufficient, is wholly non-essential to the equity upon which relief is sought.

Affirmed.

MoOleixan, O. L, Bowdeix and Benson, J.J., concurring.