Lyon v. Dees, 101 Ala. 700

Lyon v. Dees

101 Ala. 700 | Ala. | 1893

COLEMAN, J.

The amended bill shows that appellant J. M. Lyon, the defendant, was the assignee of a judgment recovered by one Ward for the sum of $482.70 against W. J. and Calvin Dees; that after the death of Ward the judgment was revived in the name of the assignee, with the consent of the judgment debtors, for the full amount of the judgment. The bill further avers that J. M. Lyon was the mortgagee of three several mortgages executed by complainant Dees, one dated 18th of May, 1878, for $500, one dated 27th of August, 1878, for $514, and one dated March 6th, 1882, for $350. The bill avers that the two mortgages of the year 1878 were executed to secure the same debt and embraced 1,300 acres of land, the subject of this controversy. The bill also avers that Ward, the judgment plaintiff, agreed with complainant and Calvin Dees, the judment debtors, to take $200 for the judgment, that this amount was advanced by J. M. Lyon as a loan to them, unde? the *702agreement that the judgment was to be assigned to him merely as a security for this loan. The bill further avers, that the consideration of the mortgage of March 6th, 1882, for $350 included the $200 loaned to pay Ward for the judgment, some advances which were to be made by Lyon to assist them to make a crop, and usurious interest, and that this latter mortgage was upon other lands and property not embraced in the mortgage of 1878. The bill avers that Lyon had proceeded to enforce both the judgment for its full amount, and also the mortgage given to secure the same debt. The bill avers that J. M. Lyon had used his advantages as mortgagee and assignee oppressively and unjustly. That he had extorted large sums of money as forbearance money and had taken possession of all the lands, and all the property conveyed in the mortgages. The bill avers that complainant had fully paid his entire indebtedness, prays for an account, and that he be let in to redeem, and offers to do equity. The defendants demurred to the bill on the grounds of multifariousness, in that the bill seeks to redeem under a judgment and also under mortgages.

The foregoing statement of the averments of the bill is a sufficient answer to show that the bill is not subject to the objection of multifariousness. The object of the bill is to redeem the lands from the same debtor covered by several mortgages, and to cancel the deed of tin; sheriff executed to J. M. Lyon, and to cancel the deed of J. M. Lyon to his sister, Mary J. Lyon. The court having jurisdiction for one purpose, will settle all questions necessary to granting the relief prayed upon proper proof. Lyons v. McCurdy, 90 Ala. 497, 8 So. Rep. 52; Bullock v. Tuttle, Ib. 439 and 440, 8 So. Rep. 69.

To so much of the bill as averred that the judgment was assigned to J. M. Lyon as a mere security for a loan of two 'hundred dollars, the respondent pleaded that the judgment was revived for the full amount, with the consent of the complainant. This question was considered and adjudicated adversely to respondents by this court on a former appeal. — Lyon v. Dees, 84 Ala. 595, 4 So. Rep. 407. We will not consider this question further.

Upon submission of the case upon pleadings and proof, the chancery court held that plaintiff was entitled to relief, and ordered the master to state an account, and *703to eliminate from the account all usurious interest charged and collected. The register held a reference, seated the account, and reported that the debt secured by the mortgages of 1878 had been overpaid by $366.31, and that upon the mortgage of 1882, which included the amount loaned to secure which the judgment was assigned, there was a balance due J. M. Lyon of $9.53. We think there is an error in the statement of the latter account, and upon a proper statement it will be seen that this debt, also, has been overpaid. On this latter statement the register found that on November 1, 1882, there was a balance due J. M. Lyon of $186.40. The interest should have been calculated on this amount to June 15, 1885, to which should have been added court costs paid, $65.41, with interest thereon to June 15, 1885. These sums, with interest included, amount to the sum of $292.27 due J. M. Lyon ón the 15th of June, 1885. This amount should be credited of that date with $240, the purchase price of 160 acres of land sold that day, and which are not sought to be redeemed, and also with $22.30, received from sale of personal property sold January 15, 1885. Adding these together, we have $262.30, to be credited upon the balance, $292.27, due J. M. Lyon, and we have a balance due Lyon June 15th, 1885, of $29.97. Add to this the interest to October 15th, 1885, and there was due Lyon on that day $30.76. On the 18th of October Lyon collected the alternate value of a horse, $40, and damages for detention, $17.50, which overpaid him about $27. As the error was in favor of appellant, it can not avail him on appeal. There were many exceptions reserved to the finding of the register based principally on the testimony of J. M. Lyon. His evidence was in conflict with the testimony introduced by the complainant. We agree with the chancellor that the weight of the evidence sustains the conclusions of the register and the exceptions were properly overruled.

It is contended by appellant that he should not be charged with $240, the purchase price of the 160 acres of land knocked down to one Seale as the purchaser. This contention is based upon two grounds ; first, that J. M. Lyon, the mortgagee, never executed a valid deed to Seale ; and, second, that Seale has never paid the purchase money, or any part of it. On this question the answer of respondents avers that “Exhibit I) is a sub*704stantial copy of tlie deed executed by said Lyon to said Seale that day.” A deed “executed” is one signed, sealed and delivered. Exhibit “I)” as an instrument of conveyance is defective, but there is no doubt it was intended to operate as a deed. This is apparent from the instrument itself, and from the affidavit of Lyon, filed and recorded with the instrument. There is no doubt that the lands were advertised and sold under the mortgage, and bid off by Seale at the price of $240, on the 15th of June, 1885, and that Lyon as mortgagee was in possession of the same, and has remained in possession ever since. What arrangments, if any, were made between Lyon and Seale does not concern the complainant. He has ratified the sale and charged the mortgagee with the amount of the purchase price. So far as the complainant is concerned, the title to the lands have passed from him, and he is entitled to a credit on the mortgage debt for the amount of the purchase money.

We agree with the chancery court, in the conclusion that the conveyance by J. M. Lyon of the lands in controversy to his sister, Mary J. Lyon, was without consideration. The consideration expressed in the deed was three thousand-dollars. The consideration attempted to be proven by respondents was barely admissible under the answer, but waiving that objection and examining it upon its own merits, it is wholly unsatisfactory. Although the consideration expressed in the deed is three thousand dollars, in response to the 6th paragraph of the bill, the answer admits that the propperty conveyed to Mary J. Lyon was worth $5,000. The bill charges that Mary J. Lyon was without means, paid no taxes and no property was ever assessed to her, and that she had lived with her brother for fifteen years, dependent on his bounty. The answer admits that she had lived with him a “series” of years, and avers that she “claimed” property. There is no proof in the record that she owned any property or had any resources; and in order to show a consideration, J. M. Lyon goes back to the year 1871, fourteen years before the transaction between him and his sister, and testifies that he was indebted to her, on a settlement made with her on that day, in the sum of $1,284. He adds the interest on this amount for fourteen years or more so as to swell it to $2,722.08. This he says was the real consideration for *705the conveyance of land to her, which he admits in his answer was worth $5,000. He was "righteous over much. ’1 On the same day and at the same time of the execution of the deed to her, she executed back to him a power of attorney which absolutely empowers him to manage, control, sell and dispose of this property, as fully as if it was his own, ratifying all his acts in the premises. More might be stated, but enough has been said, to show that to sustain this transaction, human credulity must be subjected to a severer strain than justice to the rights of other persons will admit.

By the assignment of the judgment and the execution of the several mortgages, the debtor was completely in the power of his creditor. All the resources of the debtor were tied up, and his credit destroyed. The mortgagee used his power oppressively. A court of conscience will require the debtor to pay the last farthing he justly and legally owes. Having done this, it delights to loosen the iron grasp of the creditor and let the unfortunate debtor go free.

The answer of respondents avers a willingness, upon full payment, "to relinquish all claims to any and all property acquired by said J. M. Lyon from them or either of them,” and to “surrender all of their claims to said lands.” We are of opinion the chancery court has meted out exact justice and equity to the respondents, and its decree is in all respects affirmed.