88 Ala. 405 | Ala. | 1889
This is a bill filed to set aside a defective sale' made under, and for the redemption of land from, a mortgage executed by appellees, who are complainants below, to appellant’s intestate, one Nored. The land having been sold under a power to that end embodied in the instrument, but which did not authorize a purchase by the mortgagee, the bill proceeds, with appropriate allegations, on the theory that the sale was voidable, on the ground that the mortgagee was in truth the purchaser at his own sale; and we have no difficulty in concurring with the chancellor that the testimony fully supports this theory.
The complainants, within two years, disaffirmed the sale [Ezzell v. Watson, 83 Ala. 120), and filed their bill in a double aspect. They aver that, at the time of the sale, there was nothing due on the mortgage, and pray that an account be taken, and the mortgage cancelled; but they submit themselves to the decree of the court, offer to pay whatever may be found to be due, and pray to be allowed to redeem, if the balance is found against them. To the claim thus presented, and to the relief sought, in either aspect, it was not essential to be alleged or proved that any tender was made, or that complainants surrendered possession within ten days, or other time, after the sale, or that .their failure in either respect was justified by extraneous facts. Such necessity arises when the statutory right, existing after foreclosure, is asserted, but not, as in the case here, where the effort is to effectuate
The other assignments of error all go to the correctness of the chancellor’s rulings on exceptions reserved to -the report of the register on taking and stating the account between the parties. The first and second exceptions involved the same question — whether the mortgagee should be allowed the face value of a claim, which he paid for the mortgagor, or bought in at the latter’s instance, or only the sum he paid thereon or therefor. There is conflict of testimony as to whether the liquidation of this outstanding claim was in the contemplation of parties when the original mortgage, in lieu of which the one from which redemption is now sought was given, was executed. Complainants testify that the main, if not only purpose of the instrument, was to secure defendant in the loan of money with which to pay off the claim of Forbes & Newton, amounting to $1,259, and that after the paper was signed, defendant refused to pay them this, or any sum, for the purpose indicated, but insisted that he could and would make a more advantageous settlement for them with Forbes & Newton. All this is denied by the defendant, supported by other evidence; and on the contrary, he swears that nothing was said about the claim of Forbes & Newton, until' several - months after the execution of the mortgage, when complainants requested him to pay off the claim and charge the amount of it, without regard to the sum he should pay for it, to them, as an advancement under, and to be secured by the mortgage. The testimony presents difficulties, but on the whole proof we are satisfied (especially when, in connection with the testimony of complainants, reference is had to the Amount of the first mortgage, which is reasonable only upon the assumption that it was to cover this outside debt; to the indorsement of Forbes & Newton on their claim when it was taken up, which indicates payment and not purchase, and in date corroborates complainants and contradicts the defendant; and to a subsequent statement of the account of one of complainants, in which he appears to be charged with his proportion of the amount actually paid
The chancellor, in considering the third exception to the register’s report, in connection with the fourth and fifth, reached the conclusion, that complainants had not been credited with the difference between the face value of the Forbes & Newton debt and the sum paid by defendant in satisfaction of it. The record does not furnish us with sufficient data to pass intelligently upon the correctness of this conclusion. The decree asserts it as a fact, that proper credit had not been given in this respect; and there is nothing in the report, or in the evidence on which it is based, to lead us to a contrary conclusion. With the stated account corrected by this deduction, and further corrected by reinstating against complainants usurious charges which had been stricken out by the register, without sufficient averment of usury in the bill to authorize evidence on that subject, which was ordered by the chancellor in response to the 4th and 5th exceptions, the decree confirming it, and letting the' complainants in to redeem, is free from error, and is affirmed.
