O'Conner v. Nadel

Nov 15, 1897
Reporters:
Before:
Haralson
HARALSON, J.

1. The defendant gave no separate note for the $5,000 he borrowed from complainant, nor was this necessary, for a recital of indebtedness in the mortgage is sufficient evidence of the debt, whether in an action of assumpsit by the ■ mortgagee to recover ‍​‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​​​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌​​​‌​‌‌​‌‌​‌​‌‌​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌​​​​​‌‌‌‌‌​‌​‌‍the debt, or in a suit to foreclose it. A mortgage note is not essential to the validity of the mortgage. — 1 Jones on Mort., § 71.

2. The bond given by Louis Burchard and others to the complainant, the same day the mortgage was given, and which was not signed by the defendant, was nopart of the mortgage. This bond was given to complainant as security for the loan to the. defendant, in addition to the security furnished by the said mortgage, or else the mortgage was ‍​‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​​​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌​​​‌​‌‌​‌‌​‌​‌‌​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌​​​​​‌‌‌‌‌​‌​‌‍given as additional, security to that the bond furnished. In either case, the parties to’ said bond were not necessary parties to the foreclosure suit. ■

3. It is a mistaken contention, that the property is referred to in the bill as property belonging to the Attalla Iron $¡ Steel Company, or that the property was described as in the town of Attalla. The property is described as the property known as the town property of said Attalla Iron & Steel Company at Attalla, as indicated by a certain map ‍​‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​​​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌​​​‌​‌‌​‌‌​‌​‌‌​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌​​​​​‌‌‌‌‌​‌​‌‍of the lands. It is plain to all intents, that the property mortgaged was the property that once belonged to said company, at Attalla, which does not necessarily mean in, but in or near Attalla. The preposition, at, denotes primarily, “nearness, presence, or direction towards.” Webster’s Die.

4. The debt is accurately described in the-mortgage, as to its amount; that it was for a loan made to defendant by complainant in that sum, on- the day of the date of the mortgage ; the date of its .maturity is given ‍​‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​​​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌​​​‌​‌‌​‌‌​‌​‌‌​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌​​​​​‌‌‌‌‌​‌​‌‍; the rate of interest it was to bear, and at what time payable is also given, leaving nothing indefinite about it, more than there would have been, if a note had been given by defendant specifying all these terms of the debt; the property is fully and sufficiently accurately described; the consideration Jor the mortgage security is expressed to be the sum loaned to defendant, besides the sum of one dollar paid by complainant to him, and the law day of the mortgage had passed.

There ‍​‌‌‌‌‌‌‌‌‌​‌‌‌‌​‌‌​‌​​‌​​​‌​‌​​​‌‌​‌​​‌​​​​‌‌‌​​​‌​‌‌​‌‌​‌​‌‌​‌​​‌‌‌‌​‌​‌‌‌‌‌​‌‌​‌​​​​​‌‌‌‌‌​‌​‌‍is no room for the suggestion of the statute of *599frauds, as made by counsel for appellant, for, the transaction of the mortgage is clearly without that statute. Reynolds v. Kirk, 105 Ala. 446.

The bill was well filed, and the demurrer, being without merit, was properly overruled.

Affirmed.