48 Ala. 252 | Ala. | 1872
This is a suit in chancery, commenced by Clay, the appellee, against Ne$l, the appellant, to enforce a vendor’s hen for the balance of the price of certain lands mentioned in the bill. The cause was heard in the court below on the bill and exhibits to the bill, the answer and exhibits to the answer, and an agreed statement of facts. Neither the bill nor the answer aye sworn to, and the verification of the answer, by oath, is waived. The bill alleges, that in November, 1866, Clay sold to Neel, in this State, certain tracts of land lying in the county of Perry in this State, and put him into possession of the same under the contract of sale thus made." Thiá'sale was “for the consideration of two thousand dollars in cash and twenty-three bales of cotton, which saidjwenty-three bales of cotton were to be paid over or delivered” to Clay by Neel “ on or before the first day of January, 1868.” The sum of two thousand dollars was paid in cash, as agreed on at the sale, and twelve bales of the cotton were also delivered according to the terms of the contract of sale, leaving eleven bales due and unpaid on the first day of January, 1868. These were demanded, but Neel was unable or refused to deliyer them, as was required by his contract. The bill then alleges that Clay, “ not desiring to interfere with the planting operations of said Neel, indulged him in the pay
I have thus stated the’ pleadings and the facts of this case at considerable length, because the case is somewhat anomalous, in whatever aspect it may be considered. Upon the hearing, the learned chancellor decreed in favor of the complainant’s right of lien on the land sold, and also directed an account to be taken to ascertain the balance of the purchase-money unpaid, “to the amount of the market value in the city of Selma, Alabama, on the first day of January, 1869, of eight bales of low middling cotton, each bale to weigh five hundred pounds.” It was also directed that the account thus ordered to be taken on this basis, should charge interest on the amount thus ascertained from the first day of January, 1869. The master ascertained
There is no question that the land sold by Clay to Neel had not been fully paid for, and that Clay, as the vendor, retained a lien on the land thus sold for security of the payment of the balance of the price unpaid. To this extent he was clearly entitled to relief,'unless he had in some way relinquished or forfeited his right. — Napier et al. v. Jones, January term, 1872, And the main question in the case is, what was this balance at the.date of filing the bill? This is the sole difficulty in the cause. We must look to the contract of sale alleged in the bill, to ascertain this. This contract is clear and free from any question of serious doubt. It is admitted in-the answer to be there correctly stated. It shows that the lands mentioned were sold for two thousand dollars, to be paid down in cash, and twenty-three bales of cotton, to be delivered on or before the first day of January, 1868. It also appears, by the vendor’s bond for title, which was a part of the contract of sale, that these bales of cotton were to weigh five hundred pounds each. Of the twenty-three bales of cotton, twelve were delivered, as required by the contract of sale, on or before the first day of January, 1868; and as to the eleven other bales, there was a failure .to deliver them in time. There was, then, a breach of the contract to this extent, This breach fixed the amount of the indebtedness of Neel to Olay upon the original contract, which is that alleged in the bill, and to which the incident of the vendor’s lien attaches. In this contract there was no price fixed upon the cotton. It was a contract to be discharged by the de
In this case, after deducting the credit of $275, which is not disputed, the real indebtedness, by the forbearance or indulgence, was very nearly doubled. And if such contracts are permitted, it might have been quadrupled. It would leave the creditor without a limit upon his harsh exactions, and it would open a door for the utter disregard of the statute, and encourage the most grievous oppressions, which are contrary to the policy of the law forbidding usury, which is so forbidden because it tends to such oppressions, contrary to the principles of courts of equity to enforce. — 1 Story Eq. § 307, et seq.; Pauling v. Ketchum, adm’r, June term, 1871; Balkum v. Brear, January term, 1872; Eslava v. Lepetre, 21 Ala. 504. I therefore feel constrained to treat the contract for indulgence or forbearance of the payment or delivery of the cotton as referred to in the bill and set out in the mortgage of the 11th day of April, 1868, as one in violation of the statute against usury. This deprives the complainant in the court below of all right to interest. This leaves the balance due him on his contract for the sale of the lands, mentioned in the bill, the sum of four hundred and forty dollars. For this sum the decree of the court below should have been rendered, without interest. In exceeding this sum the court erred.
The judgment of the court below is therefore reversed; and this court, proceeding to render the judgment that the court below should have rendered, doth order, adjudge and decree that the said John P. Clay, the complainant in the