86 Ala. 407 | Ala. | 1888
On the former appeal (81 Ala. 530) it was held, that the transactions mentioned in the bill, being between complainant’s intestate, who was then unmarried, and her father, with whom she resided as a member of his family, are regarded as transactions between persons occupying a fiduciary relation to each other, and that pecuniary obligations assumed by her, for his benefit, will not be sustained, unless the presumption of undue influence is rebutted. Also, that the defendants, who advanced money to the father on the daughter’s credit, with knowledge of the facts, occupy no higher or better position than the father; and it not being shown that she acted with full knowledge of the material facts, or on independent legal advice, complainant
The other questions presented for consideration arise on the decretal order of reference made after the remandment of the cause, and relate to the nature and extent of the relief to which complainant is entitled on the pleadings and proof. The transactions mentioned extended through the years 1875 to 1879, inclusive, but a separate and distinct arrangement Was made at the beginning of each year. The dealings originated in an agreement made March 3, 1875, between Mrs. Noble, complainant’s intestate, then Miss Micou, and Moses Bros., by which she assumed liability for certain advances to be furnished by them to enable her to carry on certain planting operations; also, advances for the support of her father, B. H. Micou, and his family, during the time of his attention to the business, and to pay necessary taxes and expenses, the advances not to exceed five hundred dollars per month. At the close of the year 1875, a settlement of the accounts for that year was made, and a balance of thirteen thousand four hundred and sixty dollars ascertained to be due Moses Bros., for which Miss Micou executed, February 7, 1876, her note and a mortgage on real and personal property; and in March, 1877, a judgment was rendered against her on this note.
When this case was last before us, it was declared that the judgment should be annulled and set aside, the effect of which is to remit the parties to the note and mortgage. The bill, which was filed by complainant’s intestate in her lifetime, concedes her liability for all advances failing within the terms of her agreement, and does not controvert the correctness of the items. Its main object is to eliminate from the debit side of the account of 1875 certain alleged erroneous charges, and the usurious interest charged on the advances, the liability for which is admitted, and which entered into the note. In respect to the judgment, the special prayer of the bill is, not that it be annulled in toio, but opened for the purpose of allowing all credits to which she is justly entitled; and it contains an offer to pay whatever amount may be found to be due on an accounting.
The bill does not allege any intentional fraud, or undue advantage, on the part of Moses Bros.; and none is proved,
It is evident from the frame and prayer of the bill, that its chief purpose is to surcharge and falsify the account. It was so regarded on the former appeal, and on this theory the relief and extent of relief in regard to the account of 1875, and the note and mortgage of February 7th, 1876, was declared, as follows: “We have declared above that Miss Micou, then Mrs. Noble, did not and does not by her bill claim or pray to be relieved of the entire liability incurred by her agreement of March 3, 1875, and by her mortgage of February 7, 1876. The purpose was to eliminate from the account the balance of two thousand dollars brought from the account of 1874, and charged to her at the beginning of 1875, with its interest. Also, the balance of Boykin’s account for advances made for the Shorter place for 1875, charged to Miss Micou at the close of that year. Also, all items of the account from the beginning, which are not provided for in the agreement of March 3, 1875; and all interest and charges on moneys and other things advanced, loaned, or forborne, over and above eight per cent, per annum. To this extent she is clearly entitled to relief, with this qualification.” The qualification referred to will be hereafter mentioned. According to the principles of the opinion, permission is granted to complainant to surcharge and falsify the account, and on him rests the onus to show the erroneous charges complained of.
The qualification to the extent of the relief is, that, if any
The bill prays that an account be stated between complainant’s intestate and Moses Bros., of all dealings between them since the execution of the note and mortgage of February 7, 1876. On the same day on which the note and mortgage were made, complainant’s intestate executed an obligation for the sum of forty-five hundred dollars, for advances to paake a crop during the year 1876, and a mortgage on real and personal property to secure the same. Advances were made to a large amount during the year, and charged to her. The account was closed and balanced at the end of the year, and defendants assert no claim against complainant’s intestate on account of the advances. At the beginning of each of the years 1877,1878, obligations of a similar kind, though differing in amounts, and similar mortgages, were executed. The accounts for these two years were settled, March 20, 1879, by agreement, by which Moses Bros, released complainant’s intestate from all liabilities therefor, except for the advances made in 1879 up to the date of the agreement, being about six hundred and fifty-four dollars, which sum was carried to a new account, and accepted, in satisfaction of the balance, B. H. Micou’s individual note for thirty-six hundred and twenty dollars. Miss Micou agreed to guarantee the interest on the note, and to pay the premiums on the life-insurance of her father, for the benefit of Moses Bros. There are general allegations in the bill, that improper charges were made, and usurious interest was charged in these several accounts; but the bill does not aver otherwise
The same observations which we have made in respect to payments by B. H. Micou with his own funds apply to this claim. Such appropriation of the excess of payments over the amount properly chargeable to complainant’s intestate, would be to divert from a just debt, owing by B. H. Micou, payments made by him with funds which, as between him and complainant’s intestate, were his own, and to allow her to recover it from the creditors, on whose debt he made the payments. Eelease from all liability is the full extent of the relief to which complainant is entitled; and this being accomplished, improper charges, and usurious interest included in the accounts, work no injury to her. Opening and restating the accounts will not accomplish any equitable results.
The defendants concede that complainant’s intestate is entitled to a statement of the account of 1879, of which the balance of six hundred and fifty-four dollars mentioned above .constitutes a part.
The decree is reversed, and a decree will be here rendered in accordance with the principles of this opinion.