113 So. 1 | Ala. | 1927
Lead Opinion
The trial court prepared an able and elaborate opinion in this case which is, in the main, correct and which has been quite helpful to us in the consideration of this appeal.
The appellant insists that there was a valid foreclosure of the mortgage under the power of sale. As assignee of the mortgage he had the right to foreclose (Clark v. House,
The next and most serious question, as stated by the trial court, is whether or not the complainant mortgagor is conclusively estopped from disputing the amount due by his signed statement as to the amount due to the then mortgagee or her agent and his subsequent conduct in requesting Pattillo to purchase *575
the mortgage, accompanied by a reaffirmation that the statement was correct. Ordinarily an obligor who procures another to take up or purchase his obligation is estopped from setting up any previously existing defense as against said obligation (Langley v. Andrews,
"Where, therefore, one with convenient opportunity to ascertain the real facts by the exercise of reasonable diligence fails to do so, he will not be permitted to defeat another's just rights by urging an equitable estoppel based upon his having acted to his disadvantage in reliance upon the other's innocently mistaken representation regarding the facts." 10 R. C. L. 696.
"If he knew, or under all the circumstances ought to have known the facts, the estoppel, even if the representation was made on oath, falls to the ground." Bigelow on Estoppel (5th Ed.) 627.
We are inclined to believe the respondent Pattillo's version of the transaction notwithstanding the denial of the complainant, but it appears that he procured the note and mortgage and had them in his possession some time before he finally purchased same from Miss Hartselle, the mortgagee. He is an intelligent and experienced business man, and the slightest examination of the instruments and calculation of interest would have clearly demonstrated a considerable error in the statement attached to the mortgage, and which was signed and subsequently admitted by the complainant, who was considerably inferior to Pattillo from a standpoint of intelligence and business experience. In other words, the slightest care would have disclosed a considerable difference between the amount actually due on the note and mortgage and the amount as set out in the statement. It is contended or suggested that the statement would be approximately correct if 10 per cent. interest were allowed if compounded, and that this merely amounted to usury and the complainant, in effect, waived the right to plead usury under the former decisions of this court. There might be merit in this contention if the discrepancy consisted entirely of usurious interest, but there is nothing in the papers which indicates that they were to bear usurious interest. On the other hand, the note expressly provides for 8 per cent. interest, and a computation at that rate would have disclosed the error in the statement signed by the complainant.
It is insisted that this complainant cannot maintain the present bill to redeem because he has conveyed the land to his son, citing the case of Cardwell v. Virginia State Ins. Co.,
Nor should the complainant be denied relief because of a failure to comply with a promise to secure to the respondent other debts extraneous to the subject-matter of the present controversy. 10 R. C. L. § 140; Harris v. Harris,
The decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.
Addendum
We did not pass upon the dismissal of the cross-bill for the reason that we understood that if the complainant did not redeem the land within 30 days, as directed by the decree, the bill would stand dismissed and the respondent would not need a foreclosure of the mortgage as the sale under the power would stand if the redemption money was not paid. We overlooked the fact that the respondent's mortgage sale seems to have been unconditionally set aside, and think it should have been set aside only in the event the complainant redeemed under the terms of the decree, and, as to this, the decree of the trial court is corrected and modified. Cost of appeal to be taxed to appellee.
Rehearing denied.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur. *576