Bell v. King

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 8.
• Citation: 98 So. 794,210 Ala. 551
• Parties: BELL v. KING ET AL.
• Court: Alabama Supreme Court

98 So. 794

210 Ala. 551

BELL v. KING ET AL.

6 Div. 8.

Supreme Court of Alabama

January 17, 1924

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Stephen Bell against S. P. King and R. H. Brown to enjoin the foreclosure of a mortgage, for accounting, etc. From the decree, complainant appeals. Affirmed in part reversed in part and remanded.

See also, 206 Ala. 182, 89 So. 659.

Hayden & Hayden, of Birmingham, for appellant.

Sterling A. Wood, of Birmingham, for appellees.

BOULDIN J.

The bill was filed by a mortgagor against the mortgagee and an assignee thereof; alleged that the mortgage debt was infected with usury; that the mortgagee was the real owner of the mortgage, the transfer merely simulated, and the transferee a mere "dummy," holding subject to all the equities between the mortgagor and the mortgagee; that the mortgagor had offered to pay and was ready and willing to pay the sum borrowed, with lawful interest; that the assignee was proceeding to foreclose the mortgage under the power therein; that the indebtedness secured was a part of an account long existing between the mortgagor and mortgagee, which was complicated, and on accounting the mortgagee, King, would be indebted to the mortgagor, Bell, in an amount exceeding the mortgage debt

The prayer was for a temporary injunction to prevent the foreclosure sale to be made permanent on final hearing; for purging the debt of usury; and for an accounting between the mortgagor and mortgagee, with decree over for balance claimed to be due complainant. There was prayer for general relief. The answers denied all the equities of the bill, and set up that the transferee, Brown, was the holder of the negotiable note evidencing the debt with the mortgage security in due course. There was no demurrer to the bill, and no cross-bill.

The present appeal is from decree rendered on pleadings and proof July 24, 1923.

The first question here is: Was this a final decree which will support an appeal by complainant, Bell?

The decree is divided into three subdivisions:

First, it expresses merely the opinion of the court that respondent Brown was the holder of the note and mortgage in due course.

Second, it decrees to complainant the right to redeem or have the title to certain property divested out of respondents, fixes the terms of such redemption, and decrees that upon compliance with these terms the title be divested by force of the decree.

Third, a reference to the register to find and report the amount to be paid, with directions to state the account in keeping with the terms fixed by the decree.

The legal title to the lands to be divested was still in respondent King, who had made an executory contract to convey the same to complainant, Bell, upon payment of the mortgage debt.

In Brown v. Bell, 206 Ala. 182, 89 So. 659, this cause was here on appeal from a decree overruling the motion to dissolve the temporary injunction. We then said:

"This bill was filed by appellee for the primary purpose of exercising the equity of redemption as to a certain mortgage"-the mortgage here involved.

The court below followed that decision in shaping the decree now before us.

The first portion of the decree, merely expressing the opinion of the court, decrees nothing within itself. It gives the views of the court upon which the decree following is based. The third portion, giving directions to the register as to the items to be charged, standing alone would be merely interlocutory, and subject to review only on appeal from final decree. Gainer v. Jones, 176 Ala. 408, 417, 58 So. 288.

The decree, construed as a whole, settles and determines the equities of the parties in the lands; decrees that complainant can have relief on payment of the mortgage debt in full, with interest thereon, the costs and expenses of foreclosure, including a reasonable attorney's fee incurred in this litigation, and the costs of suit.

The effect is certainly to decree the mortgage valid in the hands of Brown, not subject to deduction for usury, payment, or equitable set-off held by complainant against the mortgagee, King.

No order was made as to the injunction in force. The effect was to keep it in force for protection of complainant until he had the opportunity to redeem by payment of the amount to be ascertained. The decree is silent as to the accounting sought against respondent King. It does not expressly appear whether the court considered this feature of the bill a mere incident to its main purpose, with no independent equity,...