Barrett v. Central Bldg. & Loan Ass'n

• Decision Date: 14 May 1901
• Citation: 30 So. 347,130 Ala. 294
• Parties: BARRETT ET UX. v. CENTRAL BUILDING & LOAN ASS'N.
• Court: Alabama Supreme Court

30 So. 347

130 Ala. 294

BARRETT ET UX. v. CENTRAL BUILDING & LOAN ASS'N.

Supreme Court of Alabama

May 14, 1901

Appeal from chancery court, Talladega county; R. B. Kelly Chancellor.

Bill by John R. Barrett and wife against the Central Building & Loan Association. Demurrer to bill was sustained, and plaintiffs appeal. Affirmed.

The defendant demurred to the bill upon several grounds, among which were the following: "(3) No facts are stated which show that the issuance of stock to complainants, or their subscription therefor in the Central Building & Loan Association, was 'fictitious,' or that show any agreement of the parties to charge usurious interest; and the averments of the bill that such stock was 'fictitious,' and that 'it was the agreement of the parties to loan such money at a usurious rate of interest,' are conclusions of the pleader." "(5) The amounts of usurious interest charged or agreed to be charged are not averred, and the averment that it was contemplated or understood that that rate of interest would be at least twelve per cent. per annum is a conclusion of the pleader." "(6) For that such bill is contradictory in its statements. It avers that there was no provision in said mortgage, when a time was fixed for the maturity of said indebtedness, and the copy of said deed of trust shows that the note evidencing said indebtedness was to fall due 9 years from date, and the maturing of said note at such time is in no wise dependent upon the maturity of said stock." "(12) For that the averments that the premiums and payments on stock are payments of interest is a conclusion of the pleader." Upon the submission of the cause upon the demurrers the chancellor rendered a decree in which he adjudged that the grounds of demurrer above set out were well taken. In his decree, however, the chancellor stated that "for the purpose of this decree, I shall treat all of said grounds of demurrer as one demurrer." Thereupon the decree was rendered sustaining the demurrer interposed to the bill of complaint.

Knox Bowie & Dixon, for appellants.

Whitson & Graham, for appellee.

DOWDELL J.

It is shown by the bill that the complainants, for the purpose of obtaining a loan, became members of the defendant company the Central Building & Loan Association, subscribing for and taking 20 shares of stock in the concern; that they obtained a loan of $1,000, for which they gave their note, and to secure the same executed the mortgage or deed of trust, a copy of which is attached to and made a part of the bill as an exhibit. The complainants now seek by their bill to enjoin the foreclosure of said mortgage, and the sole ground upon which they base their claim for relief is that of usury, with which said mortgage is averred to be affected. The bill fails to set out the note which the mortgage was given to secure, and also fails to set out either the certificate of stock, or charter, or by-laws of the defendant company, or the substance of the same, and offers no reason or excuse for such failure; but the pleader contents himself with averring in general terms that the borrowing and taking of stock was a single transaction, and that it was the intention and understanding of the parties to charge and receive usurious interest for said loan, and that the issuance of the stock was "fictitious." The bill, as amended, was demurred to by the respondent. The demurrer was single, though it contained 12 different grounds or assignments, and was so treated by the chancellor. The demurrer was sustained, and from this decree the present appeal is prosecuted.

The rule is that on appeal from a decree sustaining a demurrer to a bill in equity the decree will be referred to the causes of demurrer which will support it, and not to others which would render it erroneous. Tatum v. Tatum, 111 Ala. 209 20 So. 341; McDonald v. Pearson, 114 Ala. 641, 21 So. 534; Steiner v. Parker, 108 Ala. 357, 19 So. 386; Ferris v. Hoglan, 121 Ala. 241, 25 So. 834. A demurrer to a bill confesses only matters of fact which are well pleaded, and not conclusions or inferences of law or fact. McCreery v. Bank, 116 Ala. 228, 22 So. 577; Railway Co. v. Rand, 83 Ala. 298, 3 So. 686; Lake...