140 Ala. 413 | Ala. | 1903
Apparently the object of the amended bill of complaint is to effect redemption of complainant’s lands from a mortgage given by her to James T. May and afterwards acquired by -defendant George D. -Noble, and to’remove impediments to such redemption, one of which exists in the form of a conveyance of complainant’s equity of redemption to George D. Noble, and another in the form of a conveyance from the latter to the defendant, Ida P. Noble.
This appeal being from a decree overruling a demurrer,- brings for consideration the merits of the bill only so far as the same depends upon the case made for avoiding the conveyance of complainant’s equity.
To this phase of the case is applicable the principle which in Goodman’s Ex’rs. v. Pledger’s Admrs., 14 Ala. 114, was thus stated: “The mortgagor of property, real or personal, may sell, or otherwise dispose of the equity of redemption, and the law does not render the mortgagee incapable of purchasing from him, The mortgagor, therefore, has the right to sell, and the mortgagee the capacity to buy the equity of redemption. But the principle is settled, and-we think in accordance with strict morality, that if the mortgagee use the power his mortgage may have given him, to obtain the equity of redemption at less than its value, aud for less than others would have given for it, a court of equity will hold the transaction a mortgage, and permit the mortgagor to redeem.” For authorities recognizing the correctness of this principle see Oakley v. Shelley, 129 Ala. 467; Locke’s Ex’rs. v. Palmer, 26 Ala. 313; Hyndman v. Hyndman, 19 Vt. 9; 46 Am. Dec. 171; Jones on Mortgages, § 1046.
The averments from which this statement of facts is condensed may be lacking in formality and the bill may not be above criticism in other respects, but assuming the truth of these averments as must be done on demurrer, and applying thereto the doctrine above referred to, the bill must be held good as against objections raised-by the demurrer.
The bill shows that under the contract sought to be avoided George D. Noble received personal property worth more than the $180.00 he paid under the contract,
Affirmed.