61 So. 288 | Ala. | 1913
This bill was filed on January 10, 1910, by Wm. H. Roper against the Union Baptist Church of Mobile, and sought the foreclosure of a mortgage which the complainant alleges was executed and delivered to him by the respondent on or about June 20, 1890, to secure an alleged indebtedness of $500. The bill alleges that the respondent made to the complainant 10 notes of $50 each, the first note maturing-90 days after its date, and the other 9 maturing successively 90 days after the maturity of the previous note, and that said mortgage was executed to secure the payment of said notes. The bill further alleges-that the mortgage was never recorded, and that said notes and mortgage had been burned. The respondent filed an answer denying that it ever owed the complainant said money,.and also denied that it ever executed the said notes and mortgage.
It will be seen from the above that the bill was filed nearly 20 years after the alleged execution and delivery of the notes and mortgage. The evidence of the complainant showed that said notes and mortgage — if they were ever executed — were destroyed by fire on the 13th day of May, 1900, nearly 10 years before this bill was filed. The complainant was a member of said church at the time of the alleged execution of said notes and mortgage, and at the time they are alleged to have been destroyed by fire, but he severed his connection with that church at least seven years before he filed this bilL
We can understand Avhy the complainant Avithheld his mortgage from the record. There Avas no laiv requiring him to record it, and, if he had produced it, the fact that it had not been recorded Avould have been Avorth nothing to the respondent. We can understand hoAv the mortgage could have been destroyed by fire and can also understand Avhy the complainant, so long as he remained a member of the Union Baptist Church of Mobile, even after the alleged destruction of the mortgage by fire, should have hesitated about filing this bill. We are not, hoAvever, able satisfactorily to explain to ourselves consistently Avith the existence of a duly executed and valid mortgage at the time of its alleged destruction the failure of the complainant for a period of at least seven years after he had become disgusted Avith said church, and had, for that reason, severed his connection Avith the said church, to invoke the aid of a court of equity to establish the mortgage or to file the present bill. When the mortgage Avas destroyed by fire —if it Avas so destroyed — a court of equity Avas open to the complainant, and Avould, at his instance, upon proper proof, have ascertained that the mortgage had been destroyed, and have re-established it for him. While the laAV did not require complainant to so act, nevertheless his failure so to do has resulted in the necessity for a mass of oral evidence covering the question as to Avhether the respondent 20 years before the time Avhen the Avitnesses testifying about the matter were called upon to testify about the same owed the complainant any money or executed and delivered to him, in legal form, the notes and mortgage referred to.
These suggestions are thrown out simply to indicate the uncertainty and infirmity that must, necessarily, attach, under the circumstances of this case, to the appellee’s own evidence, and upon the appellee is cast the burden of the proof as to all the material allegations of his bill of complaint. While this is not a bill to establish the alleged lost mortgage, but to foreclose a lost mortgage, equity will not grant relief unless the execution and former existence of the mortgage is as clearly established as if the bill had been filed primarily to establish such alleged lost mortgage. It has ever been the rule that, to justify relief in such a case, the proof of the execution and delivery of the lost deed, mortgage, or other paper writing should be clear and convincing.
The church which it appears the appellee was active in organizing may in its refusal to meet the demands which appellee, in this bill seeks to enforce, unjustly deprive appellee of moneys which rightfully belong to him. While we cannot affirmatively say from all the evidence that such is not the situation, we can say affirmatively that appellee has not, when his evidence is weighed as it should be weighed, met that burden of proof “by clear and pointed evidence” required by courts of equity of the due execution and delivery of the mortgage which he seeks, in this proceeding, to foreclose. He may be right as to the justice of his claim, and the evidence, we think, establishes the fact that the church probably owes him the debt which he claims; but he has not, as we have already said, established the proper execution and delivery of a mortgage by that clear proof which a court of equity in cases like the present exacts. The trustees of the church may have relieved themselves, as some of the evidence tends to show, “of the burden Avhich the church had placed upon them” by executing and delivering to complainant a proper mortgage, but if so, the appellee has not met, by corresponding clear and pointed evidence, the burden Avhich a court of equity placed upon him when' he invoked its jurisdiction to grant to him the relief prayed for in his bill.
The decree of the court below is reversed; and a decree is here rendered dismissing the complainant’s bill.
Reversed and rendered.