56 Ala. 221 | Ala. | 1876
Appellant, in his bill as complainant below, shows that, in April, 1875, he executed a mortgage of certain live stock, and of crops to be made that year, to secure repayment on the 1st of October afterwards, to appellee, of money borrowed of him; and the instrument confers on the mortgagee a power to sell the mortgaged property to discharge the debt, if it be not paid at maturity. On the 26th of October, the debt being past due and unpaid, appellant purchased of one J. W. Hale, and obtained by assignment from him, a claim he had against appellee for goods the latter had purchased of Hale. On the same day, appellant (the mortgagor) offered to set off this account against, and pay with it the mortgage debt, and insisted that appellee should consent to do so, and acknowledge satisfaction of, or cancel the mortgage. This, appellee refused to do, but, instead, took possession afterwards of the mortgaged property, and was proceeding to have it sold, under the power in the mortgage, wrhen appellant filed his bill against appellee, with allegations of the facts above stated, an offer to set off and discharge the mortgage debt as above, and prayers for an injunction and general relief.
A preliminary injunction having been issued, under an
In the thoroughly considered case of Tuscumbia, Courtland and Decatur Railroad Company v. Rhodes (8 Ala. 206-220), it was held, that the principles deducible from the English chancery cases, upon the subject of set-off, may be thus stated : “ Although courts of equity, at first, assumed jurisdiction on the natural equity, that one demand should compensate another, and that it was iniquitous to attempt at law to enforce more than the balance ; yet now they only exercise it^-lst, when a legal demand is interposed to an equitable suit; 2d, when an equitable demand cannot be enforced at law, and the other partjr is suing there ; 3d, or, where the demands are both purely legal, and the party seeking the benefit of the set-off can show some equitable ground for being protected.” And it is held in the same case, and several others, that the insolvency of the debtor-creditor, who is proceeding to collect the sum due to him, is “ a distinct equitable ground, entitling the party to relief, even in cases where both demands are purely legal. See, also, White v. Wiggins, 32 Ala. 424; Marshall v. Cooper, 43 Md. 46.
The motion to amend the bill, being made in term time, and submitted at the same time that the motion to dismiss for want of equity was submitted, ought to have been allowed by the chancellor, if the bill would have been made good by the amendment proposed. Was there any reason why the bill would not thus have been made sufficient ? If there was, it must have arisen out of one of two facts or circumstances appearing from the allegations it would contain: one, that the defendant (Mohr) was insolvent when the plaintiff took the assignment of the claim against him; and the other, that it was purchased after the maturity of the mortgage debt. Why should the latter circumstance have any such effect ? No suit had been brought upon the mortgage debt; and no action had been taken, or seizure of the property made, to execute the power to sell. What was there to hinder plaintiff
The money this complainant owes to Mohr is not due for wages or hire; and it is only “ the wages or hire of the head of a family in this State, not having property liable to levy and sale under execution,” which the law declares “ cannot be defeated or abated by any set-off of a money demand acquired by the person contracting to pay such wages, by assignment or transfer — R. 0. § 2642. This extract is taken from the section of the Code which enacts: “ Mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between parties at the time of suit brought, may be set off one against the other by the defendant, or his personal representative, whether the legal title be in the defendant or not.” And the succeeding part of the section, set forth in the extract above, by express words, implies that the demands to be so set off may be “ acquired * * * by assignment or transfer,” from others. If there be any reason why the set-off insisted on should not be allowed, it is not disclosed in the present state of the pleadings.
The necessity of applying to a court of equity in this case arose from the fact that it is only by injunction that the defendant can be restrained from executing the power of sale contained in the mortgage, and from thereby obtaining payment of a debt from the complainant,, to whom he is at the same time indebted in a larger amount’, which, on account of his insolvency, complainant will not be able to collect.
The decree of the chancellor, dismissing the bill for want of equity, must be reversed, and the cause remanded, that complainant may be allowed to amend his bill of complaint, and regular proceedings be thereupon had in the Chancery Court.