24 So. 2d 123 | Ala. | 1945
The bill as amended is in essence one by a personal representative to enforce an equity of redemption of real estate owned by his intestate mortgagor.
Generally, the equitable right of redemption belongs to one who has an interest in the premises and would be a loser by foreclosing (42 C.J. 357, § 2091) or who owns the mortgagor's equity of redemption or any subsisting interest therein by privity of title with him by purchase, inheritance or otherwise. Butts v. Broughton,
The personal property, so far as adequate for that purpose, is the natural fund out of which real estate mortgages of a decedent must be paid (Foster v. Foster,
In the state of the pleading, however, only the single issue of the amount due, if any, on the mortgage is presented and review of the decree of the trial court will therefore be limited to this inquiry. The relief sought is predicated on no other equity.
The witnesses did not appear before the court and testify but the case was *288 submitted on testimony taken before a commissioner, so the evidence on the question of payment and the amount due must here be weighed and considered de novo. 2 Alabama Digest, Appeal and Error, 931(1).
The appellant contended and sought to show by his evidence that the mortgage had been fully paid and was entitled to be so credited. Upon this question the court ascertained that the mortgage was entitled to no credits. Proper solution of the issue is not free of difficulty, as the evidence presented is not entirely clear and leaves the mind in some doubt and confusion, but after a considerate study of the entire record, we, like the trial court, have concluded that the complainant has not sustained the burden resting on him.
The fault, we think, in counsel's argument for error in the trial court's conclusions on this question is in assuming that because maturity of the mortgage was ten years overdue the debt would be presumed paid. Under certain conditions this might be a corroborating circumstance supporting a claim of payment, but the presumption of payment or settlement of a mortgage debt arises only after a lapse of a period of twenty years from maturity where no steps have been taken to enforce settlement or to assert rights of property. Short of that period there is no such presumption in law. Gay v. Fleming,
Contrary to appellant's contention, the rule seems to be, that there is a rebuttable presumption that the debt has not been satisfied where, as here, the twenty-year period has not elapsed and the obligee is in the possession of the uncancelled obligation. 48 C.J. 687, § 189.
A complainant in the status shown by the bill of complaint, who claims credits on or full payment of the mortgage indebtedness, has the burden to establish it by satisfactory evidence (Skinner v. Ellis,
We are invited to review the question of the validity, vel non, of the mortgage, its proper execution and whether duly acknowledged, etc., but the bill seeks no such relief nor is it comprehended within the issues thereby tendered. Treatment of these matters, therefore, would be out of order.
The whole case, cautiously considered, impels us to the conclusion that the decree should be affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.