Brown Service Ins. Co. v. King
Decision Date | 27 December 1945 |
Docket Number | 8 Div. 313. |
Parties | BROWN SERVICE INS. CO., Inc., v. KING et al. |
Court | Alabama Supreme Court |
Spain Davies, Gillon, Grooms & Young and H. H. Grooms, all of Birmingham, and Norman W. Harris, of Decatur, for appellant.
S A. Lynne, of Decatur, for appellees.
The original bill of complaint in this cause was filed on October 30, 1944, by Brown Service Insurance Company, Inc., a corporation (the appellant here), against F. H. King, Mrs. F H. King and the Anniston Better Built Homes, Inc., a corporation, to foreclose a mortgage. The Anniston Better Built Homes, Inc. (formerly Decatur Better Built Homes Inc.), had become indebted to the appellant in the amount of $3550, evidenced by a promissory note secured by mortgage. This mortgage was executed pursuant to the National Housing Act, and was insured by the Federal Housing Administration. Subsequent to the execution of the mortgage, the appellee King purchased the mortgaged property and assumed the payment of the mortgage indebtedness. All payments due on the mortgage indebtedness up to April 1, 1944, were made, but default was made in the payments accruing subsequent to that date.
The bill prayed that the mortgage be foreclosed or, in the alternative, that,
On December 8, 1944, the appellee F. H. King under the Soldiers' and Sailors' Civil Relief Act filed a petition to stay the foreclosure proceeding. Upon hearing the petition, the court entered its order staying the proceedings to foreclose, and ordered appellee King to pay, beginning with the month of May, 1944, to appellant the sum of $4.74 per month during King's period of military service, and for three months thereafter. The court further ordered that a deposit of $30.60, held by appellant to cover taxes and insurance premiums, be applied to mortgage payments in default.
The following is appellant's statement of the case made by the evidence:
'It is agreed that the principal balance due on the mortgage was $3,500.08. At the date of the decree, the taxes and hazard premiums, the interest and the F. H. A. mortgage insurance amounted to $19.44 a month. The mortgage provided that the payments due on the note for principal and interest should be $19.74 per month. The fire and hazard insurance amounts to $4.74. The over-all payments amount to $26.00 per month. In the agreed statement appearing in the record, it is stated that the charges, exclusive of the principal, amount to $19.44, whereas, the mortgage note provides for principal and interest payments of $19.74.
'The taxes amount to $35.75 per annum, or $2.98 per month. The hazard insurance amounts to $21.09 per annum, or $1.76 per month. Interest at 4 1/2% on the unpaid balance amounts to $13.12 monthly. Consequently, the breakdown as to these items is as follows:
"Interest $13.12
Taxes 2.98
Hazard Insurance 1.76
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'The total of $19.44 includes F. H. A. mortgage insurance. The $17.86 deducted from $19.44 leaves $1.58 for this item. The principal payments amount to the difference between $19.44 and $26.00, which is $6.56 per month. By using the over-all payment of $26.00, the final breakdown is as follows:
"Interest $13.12
Principal 6.56
Taxes 2.98
Hazard Insurance 1.76
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To the foregoing, we may add that it is undisputed that King purchased the mortgaged property from the Anniston Better Built Homes, Inc., on November 2, 1943, paying therefor the sum of $400 in cash and assumed the $3550 mortgage. That when King's deferment from military service was disallowed, and he was released from his job at Wright Field on April 15, 1944, for induction into the Army, his salary or wages was approximately $400 per month. That when King was inducted into the Army he had between $200 and $300 in money and no other property. That since his induction, illness in his family has reduced his capital to less than $100.
Appellant contends that the trial court abused its discretion in fixing the payments to be made by appellee at only $4.74 per month.
Title 50 U.S.C.A.Appendix § 532(2), governs the matter here at issue. That part of the section referred to is as follows:
'(2) In any proceeding commenced in any court...
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