105 Ala. 389 | Ala. | 1894
The litigation in this case grew out of a loan of money by a foreign company to Mark S. Yinson,' procured for him by an Alabama brokerage company and a local agent or correspondent. The facts of this case, and in most of the cases where loans have been obtained from foreign loan companies, show that the lender did not deal with the borrower directly or through agents of the lender, but accepted propositions to borrow upon terms and securities offered by the borrower through brokers and local agents of his own selections. The relation and liabilities of the respective parties to each other were very clearly stated in the case of Ginn v. New England Mortgage Security Company, 92 Ala. 135, and affirmed in the case of American Mortgage Co. of Scotland v. King, ante, p. 358, and we see nothing in the present case to distinguish it from those cases in this particular respect. Our conclusion is, that the application of the borrower, and his appointment in writing, of the party to whom the money should be paid for him, were sufficient authority to the lender to pay over the money, for him, to the person who received it.
It was insisted by respondent, that the contracts which shoYed these representations and agreements on the part of the borrower could not be proven by the mere introduction of what purported to be copies of the original papers. These papers were not of that character to be self-proving, and the absence of the original papers was not sufficiently accounted for to authorize the introduction of copies. If this was all, we would be inclined to hold, that the complainant had failed in his proof on this point; but the rule is well established that when material facts are distinctly averred in the bill and are admitted in the answer, the admission dispenses with proof of the facts thus averred and admitted. The written agreement and application of respondent are averred in the bill, and extracts therefrom on the questions are set out therein. The defendant in his answer does not deny that he signed* the agreement and application and that they contained all that was averred in the bill. His answer to these averments is, that the instruments were
The plea of usury in the loan is not sustained by the proof. The case is fully covered by the case in 92 Ala. 135, supra, and by what was decided in the case of Edinburgh American Land Mortgage Co. v. Peoples, 102 Ala. 241.
The court erred in dismissing the bill of complainant entirely; it was entitled to some relief. The extent of this relief depends upon other questions. A portion of the land mortgaged to complainant was encumbered by a previous mortgage to one Kelly. This latter mortgage was foreclosed, and the equity of redemption thereby cut off before complainant filed its bill. There was no right of redemption except the statutory right, and this was not available to complainant under the pleadings and evidence. We have no reason to doubt the bona fides of the Kelly mortgage and good faith in its foreclosure. The complainant was entitled to a foreclosure of its mortgage upon all the lands, not included in the premises mortgaged to Kelly.
The decree of the chancery court is reversed and the cause remanded, that the cause may be disposed of as herein indicated.
Reversed and remanded.
