Baker v. Orr

• Decision Date: 24 November 1910
• Citation: 169 Ala. 665,53 So. 1006
• Parties: BAKER ET AL. v. ORR.
• Court: Alabama Supreme Court

53 So. 1006

169 Ala. 665

BAKER ET AL. v. ORR.

Supreme Court of Alabama

November 24, 1910

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Action by J. B. Orr against Tony Baker and others to foreclose mortgages. From a decree for plaintiff, defendant, Tony Baker, appeals. Affirmed.

Tidwell & Sample, for appellant.

Kyle &amp Hutson, for appellee.

SAYRE J.

By his bill appellee sought to foreclose first and second mortgages on appellant's tract of land, and had relief as to both. No error is assigned upon the decree in respect to the second mortgage.

Defendant Tony Baker, had formerly owned the land, but had lost it by foreclosure. He had no interest whatever in the land nor any right concerning it. The transaction in question had its origin in his effort to repurchase. He went first to Judge Russell who represented the nonresident owner. By Judge Russell he was advised to go to some neighbor who would be able and willing to make arrangements for him. He went to complainant. The extent of what followed, as shown by the paper writings, is that complainant, on February 8, 1904, purchased the land from the nonresident owner taking a conveyance of the absolute fee. On April 29, 1904, he entered into an agreement with defendant by which he undertook to make a deed upon the payment by defendant of $225 in installments of $75 payable October 1st, next, and annually thereafter. On October 20, 1904, defendant paid $100, and complainant made his deed on the consideration previously agreed upon, and at the same time took defendant's mortgage to secure a recited balance of $150. Defendant's contention is that the purchase price paid by complainant was a loan to him (defendant), that complainant's purpose in taking title was to secure this loan, and that the excess secured by the mortgage over the price paid by complainant was a device to cover usury. On this theory, and on his own testimony in support of it, defendant asks relief in his cross-bill. Complainant's testimony is that the several writings express the whole truth of the transaction. This branch of the case might well be disposed of on the ground that defendant has failed to sustain the burden of proof which rested upon him in the premises.

Defendant must fail for another reason. Whatever may have been the original expectations of the parties as to complainant's dealing with the property after he should acquire title, until the contract of April 29, 1904, was entered into, defendant had no agreement of legal cognizance, nor any right whatever in the premises. The statute of frauds stood in his way. Tillman v. Kifer (at the last term) 52 So. 309. Complainant had the legal right to dispose of the property on his own terms. The payment of the purchase money to the nonresident owner was not, therefore, a loan to defendant. Thus every feature resembling a loan is eliminated from the case, and, as for anything yet appearing, defendant has no coigne of vantage from which to attack the transaction as usurious. Dykes v. Bottoms, 101 Ala. 390, 13 So. 582.

The decree below directed that the sum of $100, paid as above noted, be credited upon the principal then due and to become due, decreeing foreclosure for the balance of the agreed purchase price, $125, without interest. The ruling was that the contract of security here sought to be enforced was usurious--a ruling in favor of the appellant. The taking of the mortgage did not affect the complainant's original debt or his right to interest thereon, or any remedy he might have for recovery of the same apart from the mortgage, but affected only, we take it, the security...