44 Ala. 241 | Ala. | 1870
An agreement was made between the parties to this suit, by which Cobb and Scott were to exchange lands, and Ponder was to release Cobb’s land from a mortgage held by him, and in lieu of it take another mortgage, for what was due on the first, on the land to be received by Cobb from Scott.
As a condition to his assent to .this arrangement, and to a twelve months extension of time for payment of the debt due him, Ponder required Cobb to scale a payment which he had made on this debt in 1863, in Confederate money, and to give a new note for the amount they ascertained to be due. Scott was not informed of this transaction. Deeds, conveying the lands exchanged, were made by the proper parties. Oobb executed to Ponder a mortgage on the land received from Scott to secure the new note. He also mortgaged the same premises to Scott, to secure the balance due him on the exchange, providing for the sale of the property in default of payment, and disposing of the proceeds of the sale as follows : to the payment of, 1st, the costs of the sale; “ 2d, the amount secured to be paid to B. K. Ponder, by a mortgage on said premises; ” 3d, the amount due Scott, &c.
• Ponder being about to sell the premises conveyed by his mortgage, Scott filed his bill to enjoin him. He charges that he was induced to exchange lands with Oobb, and to allow Ponder’s mortgage to have precedence over his, by the representations of Cobb and of A. F. Given, the agent of Cobb, that there was very much less due to Ponder than was claimed by him; that the agreement between Ponder and Oobb, to scale the payment made in Confederate money, and to give a new note, was unknown to him, and was a violation of their agreement with him. Ponder, in response, insists that the only agreement made by him was with Oobb, and that it was at Oobb’s request that he consented to give up his first mortgage and take another on the other premises, provided it should have precedence over Scott’s, and be for the amount due after scaling the payment in Confederate money. He admits that the understanding between the parties was that his mortgage was to be for the amount due on his first mortgage, but contends that the amount of the new note is the amount justly due on the said mortgage.
The bill asserts, and the answers and testimony of the defendants admit, that Ponder was to have a prior mortgage on the land, conveyed by Scott to Oobb, for the amount actually due on a mortgage held by him on the land conveyed by Oobb to Scott. The evidence shows, that, on the 23d of January, 1866, Oobb agreed with Ponder to scale the payment in Confederate money to its gold value, and gave him a new note for the balance thus ascertained to be due ; that this transaction was made during the pendency of the negotiation for the exchange of lands, and was unknown to Scott.
It is contended by the appellant, Ponder, that the recital of his mortgage in the mortgage of Scott is sufficient to charge him with constructive notice of its contents. The (proposition is well established that notice of an incumbrance on property is notice of its contents. — Hall v. Smith, 14 Vesey, 426; Jones v. Smith, 1 Hare, 43; Story’s Eq. Jur.
Before and at the time of the execution of these deeds of sale and mortgages Scott had notice of an existing mortgage held by Ponder, on the land of Cobb. This mortgage describes a certain note as the evidence of its consideration. On this note were credits, not specifying in what currency paid, but using the general term “ dollars,” as did the promise to pay. Scott is charged with constructive knowledge of this. If we add to this knowledge, the information given to him by Cobb and by Given, who, as the agent of Cobb, paid the credits to Ponder, the reception by Ponder of the payment, his acquiescence in it for nearly three years, and his declaration that he would not have asked Cobb to scale the payment if he had not desired time on his debt, and the transfer of his mortgage to other property, we are obliged to conclude that Scott was justi
The chancellor proceeded to determine the indebtedness between the défendants. In this we think there is error. The pleadings do not put in issue their rights against each other. The new contract made by them may or may not be valid. The defense of usury is a personal privilege, and must be pleaded. Our conclusion is that the appellee is entitled to the relief for which he prays, but that a cross bill, or an amendment of the pleadings, is necessary to decide any issues between the defendants.
Decree reversed, and cause remanded.