50 So. 127 | Ala. | 1909
This was a bill, filed in the chancery court of Elmore county, to have an absolute deed
The depositions of numerous witnesses, several times examined, were taken by both the complainant and the respondent, to prove and to disprove the allegations of the bill and cross-bill, respectfully. The evidence is entirely too voluminous. The case was submitted, upon the respective pleadings mentioned and upon the evidence referred to, for final decree, and by consent of parties was held for decree in vacation, resulting in a decree of the chancellor holding that the complainant was entitled to the relief prayed in his bill. This degree is appealed from by the respondent, and he assigns as error the findings and the decree of the court to the effect that the note secured by the mortgage had been paid, and that
We have carefully reviewed all the evidence in this case as shown by the record, aided by the full and splendid briefs of counsel for appellant and appellee, and we fully agree with the learned counsellor in his findings and decree. While the burden of proof is originally upon the complainant to establish the averments of his bill, and while the evidence is very conflicting as to some of the material questions, it indisputably appears from the evidence that the complainant had paid to the respondent an amount largely in excess of the mortgage debt and interest. This is admitted by the respondent; but the respondent claims that these payments were made upon other debts than the one intended to be secured by the mortgage or deed upon the land, to wit, for advances made by the respondent to the complainant and his children, and that it was agreed between the parties that the amount of these advancements should be paid in preference and prior to the debt secured by the mortgage upon the land.
The fact that advances were made by the respondent to the complainant and his children, and that it was agreed that these should be paid in preference to the debt secured by the mortgage upon the land, is without dispute. Consequently the question most seriously disputed, and as to which the evidence was in conflict, was the amount of such advances. As to this the respondent and his witnesses are very indefinite and uncertain. While they testify in general terms that advances were made and the amount of payments made by
There is little doubt in the minds of the court that this debt has been fully paid. Whether it was intended by the mortgagee to be a payment is immaterial, in the absence of any showing on his part that the mortgagor owed him other debts than the one secured by the mortgage to which he could have applied the payments thus made. There being no doubt that this deed, absolute on its fact, was intended as a mortgage, the parties are therefore clothed with all the rights, subject to all the liabilities, and entitled to all the remedies of ordinary mortgagors and mortgagees; and the amount secured by the instrument having been paid, the mortgagor being-in possession, he has the right to have the mortgage canceled as a cloud upon his title, and to have a reconvey
The decree .of the chancellor is therefore affirmed.
Affirmed.