McCalley v. Otey

90 Ala. 302 | Ala. | 1890

OLOPTON, J.

The assignments of error go to the allowance of an amendment to the bill, the refusal to dissolve the injunction for the want of equity, and to overruling a demurrer to the bill. Omitting the averments not necessary to a proper understanding of the questions raised, the case made by the bill is : Martha T. Bussell, being the owner and holder of a bond and mortgage executed August 16, 1876, by Octavia A. Otey, having ascertained, upon calculating interest on the amount originally borrowed, at eight per cent, per annum, and deducting payments, there was due September 1st, 1884, the sum of $1,480.76, agreed with Mrs. Otey to accept, twelve hundred dollars in full payment. The defendant, Mc-Calley, having been applied to by Mrs. Otey, advanced the amount for her, and took a transfer by delivering up the bond and mortgage, under an agreement that she should be allowed to discharge and satisfy the same by the payment of twelve hundred dollars on January 1,1888, provided she paid the interest on the sum ascertained to be due by Mrs. Bussell on the 1st day of January of each and every year, until January, 1888. Mrs. Otey paid the interest annually as agreed, and on December 31st, 1887, tendered McCalley the sum of $1,318.46, being the aggregate of the principal sum and the interest for 1887, agreed to be paid. Complainants seek by the bill the redemption of the mortgage, by compelling Mc-Calley to accept the amount tendered in satisfaction thereof, and to restrain a sale of the land under power of sale contained in the mortgage.

While courts of equity are reluctant to interfere with the legal rights of a mortgagee, and exercise with care and caution the jurisdiction to restrain the execution of a power of sale in a mortgage; yet they will interfere to enjoin proceedings under the power, when it clearly appears that the collection of the debt would be against good conscience, and the execution of the power would work irreparable injury; or when the mortgagee is proceeding in an improper or oppressive manner, or is perverting the power from its legitimate purpose.—Vaughn v. Marable, 64 Ala. 60; Glover v. Hembree, 82 Ala. 324; High on Inj., § 442; 2 Jones on Mortg., § § 1801-5. We do not understand from the bill that the tender of the amount due, and its refusal, are the only facts upon which the interference of the court by injunction is asked. If its averments be true, McCalley, in July, 1888, filed his bill in chancery, after the tender had been twice made, for the foreclosure of the mortgage and sale of the land; and after answers had been filed, and testimony taken, he dismissed the bill without prejudice, in March, 1889, and advertised the land for sale under the power in the mortgage, on July 22, 1889. Though he had the legal right to abandon one remedy and adopt another, such conduct naturally suggests the inquiry, why did he dismiss the bill, after electing to proceed in equity, when the case was ready for hearing, and the amount due upon the mortgage could have been speedily ascertained, and resort to the exercise of the power of sale, which would reasonably produce further litigation ? The inquiry is answered by the allegations of the bill, that his purpose was to coerce the payment of another claim preferred against Mrs. Otey, on which suit was pending, her liability for which is denied, and that when the tender was made the second time, he expressed his determination not to accept it, unless such other claim was also paid.

In Struve v. Childs, 63 Ala. 473, the mortgagee proceeded to execute the power of sale, by collusion with third persons, in order to force the purchaser of the property, who bought subject to the mortgage, into a settlement or compromise of an alleged vendor’s lien, to enforce which a suit was then pending. This was considered a perversion and oppressive use of the power, and it was ruled, that a court of equity would enjoin its execution until the termination of the vendor’s suit. The tender by Mrs. Otey of the full amount due, the refusal to accept it, and the attempt to execute the power of sale, to accomplish an object foreign to the legitimate purposes for which it was given — to coerce the payment of a disputed and litigated claim, not in any wise connected with the mortgage — ¡justify the interference of the court by injunction.—Shields v. Lozear, 22 N. J. 447.

The special grounds of demurrer, and the grounds on which the motion to dissolve the injunction for want of equity is based, are, that it is not shown by the bill that complainants kept the money continuously ready to pay the mortgagee, nor brought and paid the money into court. It is not contended in argument, that the amendment was improperly allowed; but it is insisted, that the fact set up by the amendment — that the money is brought into court, and deposited with the register, to abide the order and decree of the court —is a fact essential to the equity of the bill, and, occurring after it was filed, can not be introduced by amendment to supply a want of equity.- The demurrer, and the motion to dissolve the injunction, raise the question of sufficiency of the ■offer to do equity made in the original bill.

In Daughdrill v. Sweeney, 41 Ala. 310, it was held, that a bill by a mortgagor, asking the redemption and cancellation of the mortgage, and the injunction of a sale under a power therein, upon the ground of tender of the amount due and its refusal, is without equity, unless followed, at the time of filing the bill, by a payment into court of the amount admitted to be due, and this is shown by an appropriate averment. It will be observed that the only ground for equitable interference by injunction in that case, was the fact that the amount, of the mortgage debt had been tendered and refused. Its authority has been greatly shaken by departure from the principle so generally declared in subsequent cases, and it has been expressly overruled as to bills for ordinary redemption.—McGuire v. Van Pelt, 55 Ala. 344; Carlin v. Jones, 55 Ala. 624. It has never been extended to cases where the mortgagor was using the power to sell in an improper or oppressive manner, and to effect unauthorized and unlawful purposes of his own or of others.

In Struve v. Childs, siqora, the injunction, which had been dissolved by the chancellor, was reinstated by this court, although the bill did not aver the payment of the money into court, and the only offer was to give such indemnity against possible loss or damage by stay of sale as to the court shall seem just and reasonable.

In Sec. Loan Asso. v. Lake, 69 Ala. 456, the offer in the bill by the mortgagor to redeem real estate, and to enjoin a sale under the power, was to pay the association whatever amount he was chargeable with, if any, upon the application of the terms of the by-laws, and to submit himself to the order and decree of the court. The bill averred the mortgagor had offered to pay the amount admitted to be due, but did not aver a tender, or that the money was brought into court. It was held insufficient, because it failed to show that the mortgagee was claiming more than was due, or that the accounts were complicated, and that he was making a fraudulent or oppressive use of the power of sale; but it was also held that the offer tó do equity was sufficient to entitle complainant to relief, if his bill was otherwise sufficient.

In addition to the two tenders previously made, the original bill avers that, after the land was advertised for sale, the amount was again tendered to the mortgagee, and its acceptance refused, unless the other alleged claim was paid, and contains this clause : “Which complainants are now ready and willing to pay him, and have been ready and willing to pay him ever since December 31, 1887.” It may be conceded, that in equity no less strictness is observed in keeping good and pleading a tender than in courts of law, and that at law the tender must be kept good, and, under the statute, the plea must be accompanied with the money brought into court. What is the conseqence, if the tender is not kept good, and the money is not brought into court on plea ? A tender refused does not operate to discharge the debtor from the debt, but only releases him from the payment of the interest subsequently accruing ; and to have this effect, the amount tendered must be in readiness to be paid at any time called for, and on plea must be followed by the payment of the money into court. It is not meant, however, that the identical money tendered must be kept; it is sufficient if the party holds himself ready to pay at all .times.—Shields v. Lozier, supra. The averment of the bill is equivalent to an averment, that from the time of the first tender, to the filing of the bill, complainants held themselves ready to pay the amount tendered, whenever the mortgagee would accept it; and on the facts alleged, the payment of the money into court was not essential to the equity of the bill, as a bill for redemption, or to restrain the execution of the power of sale. It is material only as bearing on the question of costs and payment of the interest during the time intervening between the filing of the bill and the amendment.

The allegations of the bill, defendant not having filed an answer denying them, justified the court in retaining the injunction ; no injury can result to the mortgagee, and complainants might suffer irreparable injuries if a sale under the power were permitted, and the property purchased by a stranger. Dockery v. French, 69 N. C. 308. This conclusion dispenses with the necessity of deciding whether the payment of the money into court is of the class of facts which, independent of the rule of practice allowing supplemental matter to be introduced by amendment, could have been introduced only by a supplemental bill, and therefore insufficient to impart equity to the original bill.

Affirmed.