Brown v. Bell
| Decision Date | 09 June 1921 |
| Docket Number | 6 Div. 453 |
| Citation | 206 Ala. 182,89 So. 659 |
| Parties | BROWN et al. v. BELL. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Bill by Stephen Bell against R.H. Brown and S.B. King, to enjoin the foreclosure of a mortgage and to redeem. From a decree overruling demurrers to the bill, and declining to dissolve the injunction, respondents appeal. Affirmed.
W.T Edwards and L.C. Albright, both of Birmingham, for appellants.
W.C Hayden and C.B. Powell, both of Birmingham, for appellee.
This bill was filed by appellee for the primary purpose of exercising the equity of redemption as to a certain mortgage executed July 14, 1920, and payable January 14, 1921. It is averred that the mortgage was given to secure a loan of $400 and that for the use of said sum complainant Bell agreed to pay $150 and $48. The mortgage is made an exhibit to the bill, and discloses that it embraces real estate and certain rights, contracts, and equities referred to as personalty. The bill further alleges that while the mortgage was executed to respondent King, yet it had been transferred by King to respondent Brown, who was a mere "dummy," and who had notice or knowledge of the transaction, and who was not an innocent purchaser. Complainant had offered to pay said Brown the $400, with legal interest, which was refused, and complainant "now offers, is willing and able to pay same," but said Brown refuses to accept; that he has advertised the property for sale under the terms of the mortgage and an injunction is prayed against a foreclosure pending the suit.
As to this aspect of the bill, setting up usury and seeking redemption, there can be no question as to its equity. Counsel for appellant cite the case of Knight v Drane, 77 Ala. 371, to the effect the bill is without equity. There was no demurrer to the bill, and this authority only has relevancy as to another aspect of the bill set up in a distinct paragraph to the effect that King was the real owner of the mortgage, and that the indebtedness evidenced thereby was only a part of an account long existing between the parties, which was complicated, and upon an accounting nothing would be due. As to whether the averments of the bill in this aspect meet the requirements or come within the rule recognized in the case of Knight v. Drane, supra, we need not inquire. Suffice it to say the bill clearly had equity as to the aspect thereof first discussed.
Temporary injunction was issued, and motion to dissolve was overruled. It is from this ruling on the motion, the appeal is prosecuted. It follows from what we have stated that the motion could not be rested upon a want of equity in the bill.
The respondents filed answers, denying all material averments, and Brown insisted he was a bona fide purchaser for value. Affidavits were offered, and it is insisted upon a consideration of the answer and affidavits (section 4535, Code 1907) the injunction should have been dissolved.
Upon questions of this character, the trial...
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