141 So. 192 | Ala. | 1932
The appeal is from a decree sustaining demurrers to the bill as originally filed and as amended.
The bill was to restrain the foreclosure of a mortgage, for the redemption of said mortgage on real property before foreclosure, for the elimination of usury alleged to be carried therein on accounting, for the due and proper marshaling of assets between several securities and parties alleged to be interested therein, and the appropriation of payments alleged to have been made on the mortgages.
The allegations are sufficient as a bill for injunction and redemption on the averred facts of complication of accounts, demand for more than was due on the mortgage sought to be foreclosed, the charge of usury, and that the mortgagee had acquired another mortgage on his personal property with which to oppress and harass complainant. The charge of failure of a due application of payments made on the real estate mortgage avers a necessity for restraining actions at law as to the properties with which he operated his farm, and the collection of amounts not due on the mortgage, and complainant submits to the jurisdiction of the court, offers to do equity by payment of whatever sum that may be found legally due on the mortgage and decreed by the court.
The case made by the pleading before us is different from that in Security Loan Association v. Lake,
"The equity of the bill may be rested upon the well-recognized jurisdiction of a court of equity to prevent a perversion of the power of sale in a mortgage from its legitimate purpose to that of oppression of the debtor and to purposes foreign to that for which it was intended. The following quotation containing the principle here controlling has found frequent repetition in our subsequent decisions:
" 'The legitimate purpose, for which the power to sell in this defendant's mortgage deed was given, was to secure him repayment of his mortgage money. If he uses the power to sell, which he gets for that purpose, for another purpose, from any ill motive, to effect means and purposes of his own, or to serve the purposes of other individuals, the court considers that to be what it calls a fraud in the exercise of the power, because it is using the power for a purpose foreign to the legitimate purposes for which it was intended.' " *558
So, also, In Boyd v. Dent,
And the question here pertinent was concluded in Ezzell v. First National Bank of Russellville,
In a bill to enjoin foreclosure, to enforce equity of redemption, an offer to do equity is sufficient, and tender was unnecessary. Williams v. Noland,
The further pertinent observation is contained in Smith v. Cook,
As to the power of a court of equity to retain a bill for the settlement of the accounts of the parties under the facts as averred, it is not necessary to do more than cite the authorities on an accounting as an incidental relief. Trammell v. Craddock,
The general demurrer tested the defects of substance, and, if there be proper amendments to be made, they are treated or considered as having been made. Wood v. Burns,
The court treated the demurrer as general and as sufficient to test the equity of the bill, and we have so considered that ruling and hold there was error in sustaining the demurrer.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.