107 Ala. 479 | Ala. | 1894
This case stands upon demurrer to the bill. Notwithstanding section 1870 of the Code provides that, “The payment of a mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage,” we are of opinion that the mortgagor of lands, in possession, having fully paid the secured debt, though possibly denied the right of a bill to redeem, as such, is entitled to go into a court of equity and have the payment established and the mortgage delivered up and cancelled as a cloud upon his title. The payment resting in parol, the evidence of it may be readily lost by death, removal or failure of recollection of witnesses, or other causes, while the mortgage outstanding contains within itself enduring evidence, prima facie, that the legal title has passed to the mortgagee and still remains in him. It is manifest, therefore, that the mortgagor is subjected to the danger of the loss of his estate, unless some remedy is afforded him of establishing the payment, and withdrawing from the mortgagee the instrument of such possible loss with which he is armed. There is no other adequate remedy than a resort to a court of equity. — See Rea v. Longstreet, 54 Ala. 291; Lehman v. Shook, 69 Ala. 486; Jones v. DeGraffenried, 60 Ala: 145; Morgan v. Lehman, 92 Ala. 440.
In the present case the appellee, Sylvester Martin, executed a mortgage to appellant upon 160 acres of land, the subdivisions of which are given in the mortgage and
We thus perceive that the bill is manifestly imperfect in several particulars : 1. As to the 80 acres embraced in the mortgage, and not sued for in the real action, and as to which, there being no special prayer for relief, a decree for the removal of the cloud cast upon its title might be obtained under the general prayer, there is wanting the necessary allegations that complainant is in possession. 2. As to the 80 acres embraced in the mortgage, and which were recovered in the real action, there is no sufficient averment of facts showing that the judgment was obtained by fraud, accident or mistake, unmixed with negligence on complainant’s part. The allegation that complainant was prevented from making -his defense by sickness, is manifestly insufficient. — Pharr v. Reynolds, 3 Ala. 521; McBroom v. Somerville, 3 Stew. 545. It does-not appear by whose sickness the default was caused, nor are the nature and extent of the sickness averred ; and no reason shown why counsel was not retained to look after the defense and protect the interest of the complainant. There should be decidedly more of detail alleged, in reference to this sickness, than this bill avers, so that the chancellor can see upon the face of the bill, that the complainant was without fault. 3. As to the land not embraced in the mortgage, and which was sued for and recovered in the real action, the bill is not only subject to the criticism last named, but it is without equity; in that it does not allege the existence of any meritorious defense which complainant had, or could have made, to the real action. As to those lands there is no semblance of a case made by the bill.
But the demurrer is so framed that it does not reach either of these several imperfections. The grounds assigned (save the third, which, is so clearly without merit as not to require notice) set up only the adjudication in the real action as an obstacle to the relief, sought. The demur
Affirmed.