Alabama Bank & Trust Co. v. Jones

• Citation: 104 So. 785,213 Ala. 398
• Decision Date: 07 May 1925
• Docket Number: 4 Div. 203
• Parties: ALABAMA BANK & TRUST CO. v. JONES.
• Court: Supreme Court of Alabama

104 So. 785

213 Ala. 398

ALABAMA BANK & TRUST CO. v. JONES.

4 Div. 203

Supreme Court of Alabama

May 7, 1925

Rehearing Denied June 25, 1925

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Bill in equity by J.E. Jones against the Alabama Bank & Trust Company, as administrator of the estate of W.E. Waites deceased. From a decree for complainant, respondent appeals. Affirmed.

Sayre J., dissenting.

Emmet S. Thigpen, of Andalusia, for appellant.

J Morgan Prestwood, of Andalusia, for appellee.

MILLER J.

This is a bill in equity by J.E. Jones against W.E. Waites. During the pendency of the cause Waites died, and it was revived in the name of the Alabama Bank & Trust Company, a corporation as administrator of his estate. The bill seeks to have enjoined the foreclosure of a mortgage on certain land therein described, which mortgage was executed by complainant and wife to W.E. Waites; to have it declared void, and canceled on the records on the ground the note and mortgage securing it are founded entirely on a gambling consideration.

The defendant filed answer in the nature of a cross-bill, denying that the note is founded on a gambling consideration, averring the consideration is a debt due defendant's intestate by complainant, and seeking to have the amount of the debt, and a reasonable attorney's fee, secured by the mortgage, ascertained, and the mortgage foreclosed under decree of the court, and the land conveyed by it sold for the payment of this debt and attorney's fee. The complainant puts in issue the debt, and avers the note secured by the mortgage is based entirely on a gambling consideration. The court on pleading and proof held complainant was entitled to relief, that the consideration in the note and mortgage is a gambling debt, founded wholly upon a gambling consideration, enjoined the foreclosure of the mortgage, directed that it and the note be surrendered to the register and canceled; directed the register to mark on the margin of the record of the mortgage that it was canceled, and taxed the respondent, as administrator of this estate, with the court cost of the cause. This appeal is prosecuted by the respondent, Alabama Bank & Trust Company, as administrator of the estate of W.E. Waites, deceased, from that decree, and it is the error assigned and argued by the appellant.

Under our statute all contracts founded in whole or in part on a gambling consideration are void. Section 3338, Code 1907; section 6808, Code 1923. A court of equity has jurisdiction in all cases founded on a gambling consideration so far as to sustain a bill of discovery and grant relief. Section 6465, Code 1923; section 3052, Code 1907. A court of equity has the jurisdiction to grant the relief sought in this cause, if the proof shows complainant is entitled to it. Section 3052, Code 1907; Kuhl v. Gally, etc., Press, 123 Ala. 452, 26 So. 535, 82 Am.St.Rep. 135.

Under an Act approved September 28, 1923 (Gen.Acts 1923, p. 631, § 1, now section 6565, ...