129 Ala. 467 | Ala. | 1900
On the 9th of December, 1879, complainant executed, to respondent a mortgage on the land in controversy and on crops- and certain machinery, including a gin, a boiler and a saw, to secure a recited indebtedness of $647.63, due to a firm of which respondent was a member.
On November 18th, 1898, the mortgage debt being then in part- due, complainant conveyed the land to respondent by an absolute deed for the stated consideration of $900 made up of a balance due on that debt together with certain accounts on third persons transferred to complainant, and respondent’s due bill for $43; and it was agreed that the mortgage be satisfied thereby releasing the personal property. A few weefcs thereafter complainant refused to yield possession of the land and when sued therefor, he filed this bill praying cancellation of the deed on the ground that at the time of its execution he was by the respondent’s procurement . “brought so much under the influence of whiskey as to be incapable of business of any character.”
The right of a mortgagor to redeem his property before foreclosure is jealously guarded in equity so that agreements for its extinguishment as by a sale from the mortgagor to the mortgagee will be closely scrutinized by the court; and if found to have been induced by unfair or oppressive use of the advantage which is presumed to be held by the mortgagee, such an agreement will be set aside and redemption allowed.—Locke’s Extr. v. Palmer, 26 Ala. 313; Goodman v. Pledger’s Admr., 14 Ala. 114; Story’s Eq. Jur., § 1019. Such a sale, however, will be upheld when fair since both, parties may desire it and each may consider it beneficial to himself, and in such case the maxim “once a mortgage always a mortgage” is not applicable.—Peagler. v Stabler, 91 Ala. 308; Parmer v. Parmer, 74 Ala. 288; McKinstry v. Conly, 12 Ala. 312; 2 Pom. Eq., § 1193, note 1. Here it is not alleged in the bill the respondent made any misrepresentation to, or obtained any financial advantage over, complainant, and though some evidence is directed to showing that the land was worth more than the nrice paid, it appears to be outweighed by evidence to the contrary. '
Let the decree appealed from be reversed, and let one
Keversed and rendered.