Alston v. Lehman, Durr & Co.

• Citation: 20 So. 950,113 Ala. 506
• Court: Supreme Court of Alabama
• Decision Date: 27 November 1896
• Parties: ALSTON v. LEHMAN, DURR & CO. ET AL.

20 So. 950

113 Ala. 506

ALSTON v. LEHMAN, DURR & CO. ET AL.

Supreme Court of Alabama

November 27, 1896

Appeal from chancery court, Montgomery county; Jere N. Williams Judge.

Bill by John M. Alston against Lehman, Durr & Co. and Josiah Morris &amp Co. for an accounting, and for the redemption of mortgaged land. A preliminary injunction restraining a sale of the land under powers in the mortgages was dissolved on final hearing and from the decree complainant appeals. Modified.

G. L Comer and H. D. Clayton, for appellant.

Thos. H. Watts, for appellees.

HEAD J.

The appellant executed to Lehman, Durr & Co. certain mortgages upon his land to secure the several sums of money therein mentioned, and these mortgages were transferred to Josiah Morris & Co. The latter firm having advertised the property for sale under the powers contained in the instruments, the appellant filed his bill for an accounting and redemption alleging that, if certain usurious charges were deducted, he would owe nothing upon the debts; at the same time offering to pay whatever might be found to be due, with lawful interest. At the filing of the bill, an injunction restraining the said sale was procured, and upon the hearing a decree was rendered, ordering a reference to state the account, and instructing the register not to allow charges for storage and commission for the sale of cotton which was agreed to be, but was not, delivered, if such charges were found to be made a cover for usury. The register reported that the appellant was entitled to large reductions, on account of usurious charges, from the sum claimed by said mortgages and their transferees, and to this report no exceptions were filed. It is from the decree entered upon the register's report that the appeal is taken. By that decree, as far as it is material now to state its terms, the court ascertained what was due upon the mortgage debts, allowed 30 days for payment, and directed that, unless payment be made within that time, the register should proceed to sell the land for the satisfaction of the amount. The court also decreed that the preliminary injunction restraining the sale under the powers be dissolved, and it is of this provision alone that the appellant in argument here complains. The only reason suggested by the counsel for the appellees why it was necessary or proper to dissolve the preliminary injunction is that otherwise the register would have been...