Boyd v. Dent

• Decision Date: 24 March 1927
• Docket Number: 7 Div. 670
• Citation: 216 Ala. 171,113 So. 11
• Parties: BOYD et al. v. DENT.
• Court: Alabama Supreme Court

113 So. 11

216 Ala. 171

BOYD et al. v. DENT.

7 Div. 670

Supreme Court of Alabama

March 24, 1927

Rehearing Granted May 12, 1927

Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.

Bill in equity for redemption from a mortgage by Fred Boyd and another against H.B. Dent. From a decree dismissing the bill complainants appeal. Reversed and remanded on rehearing.

Brown J., dissenting.

Rutherford Lapsley, of Anniston, for appellants.

Willett & Willett, of Anniston, for appellee.

BROWN J.

By this bill the appellants invoke the aid of a court of equity to protect and enforce their equity of redemption under a mortgage executed by them to the appellee on the 28th day of February, 1923, for $650. The equity of the bill rests on the assertion made by the averments of the bill:

"That on, to wit, the 15th day of January, 1916, a joint contract and agreement of sale was made between orators and said H.B. Dent, in pursuance of an agreement to purchase the lands (previously described) for the sum of $800. *** And orators further state and charge that in and by the terms of said agreement and the contract it was agreed between the parties that usurious interest should be paid by orators, and was included in the terms of said contract, by reason of which said H.B. Dent is not entitled to any interest upon the payments made under the said contract of purchase." That at the time of the execution of the mortgage a large portion of the purchase money had been paid, and that complainants did not owe an amount therein in excess of $200; "but, notwithstanding this fact, the said Dent procured the signature of orators, on February 28, 1923, to a series of notes aggregating $650, of which said notes orators have paid, down to this time, the last payment being made on March 23, 1925, the sum of $140 and interest thereon, which payment orators charge and aver is sufficient to satisfy said debt in full. If such payment is not sufficient to cover the full amount of said indebtedness, there is only a small amount due thereon, which orators are ready, willing, and able to pay, upon due ascertainment of the same under decree of this court."

If in fact there was an agreement between the parties, antecedent to the written contract of sale attached as Exhibit A to the bill, by the terms of which the defendant agreed to sell and complainants to purchase the property at an agreed price of $800, to bear interest at a usurious rate, and this agreement was embodied in the written contract in the form there expressed, and by the execution of the 91 notes therein mentioned, evidencing an indebtedness of $1,070, and this was a mere subterfuge or cover for the usurious contract, and this is the purport of the quoted averments, a court of equity will look behind this subterfuge and purge the debt of the usurious interest. Blue v. First National Bank of Elba, 200 Ala. 129, 75 So. 577; Lewis v. Hickman, 200 Ala. 672, 77 So. 46; Sewell v. Nolen Bank et al., 204 Ala. 93, 85 So. 375.

But the burden is upon the complainants to offer proof sufficient to reasonably sustain the truth of these averments, and overcome the presumption arising from the settlement between the parties culminating in the execution of the mortgage and notes which it was given to secure. Cudd v. Cowley, 203 Ala. 665, 85 So. 13.

The recital in the deed as to the amount of the consideration is not conclusive, but at most prima facie evidence, of the amount agreed to be paid. Jones on Evidence, § 469. And the recitals in the contract as to the consideration paid and to be paid, as between the parties to the contract, was likewise prima facie evidence of the amount of the consideration.

While the testimony of the complainants is in accord with the recitals in the deed, and tends to sustain the contention that the consideration for the sale of the property was $800, it is unsatisfactory and uncertain as to what, if any, interest was agreed to be paid, and is in direct conflict with their conduct in the subsequent execution of the notes and mortgage seven years after the original purchase, while the defendant's testimony sustains the contention that the written agreement expresses the true consideration.

After careful consideration of all the evidence, we are of opinion that the complainants failed to meet the burden of proof imposed upon them by the pleadings, and that the decree of the circuit court dismissing the bill was free from error.

Affirmed.

ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

BROWN J.

The appellants insist that, notwithstanding the failure in their proof to show that the mortgage debt was tainted with usury they were entitled to have the amount due on the mortgage ascertained by the court, or on reference to the register. The fault in the appellants' insistence is that the bill presents the case...