Caldwell v. Caldwell

• Decision Date: 12 April 1910
• Parties: CALDWELL v. CALDWELL.
• Court: Alabama Supreme Court

52 So. 323

166 Ala. 406

CALDWELL v. CALDWELL.

Supreme Court of Alabama

April 12, 1910

Appeal from Chancery Court, Jackson County; W. H. Simpson Chancellor.

Bill by E. H. Caldwell against S. A. Caldwell to enjoin the execution of a power of sale containing a mortgage until an unliquidated demand due from respondent to complainant could be ascertained and set off. Judgment for respondent, and complainant appeals. Affirmed.

R. W Clopton, for appellant.

Lawrence E. Brown, for appellee.

SAYRE J.

This is a case in which the complainant sought to enjoin the foreclosure of a mortgage under a power of sale in order that he might have the benefit of the set-off of an unliquidated demand against the mortgagee, and is to be settled upon familiar principles of equity jurisdiction. Complainant and defendant are brother and sister, living under the same roof on the mortgaged property, and some ethical reasons are suggested which possibly ought to have consideration by the complainant before a foreclosure is insisted on, but there is no showing of grounds for interference cognizable in a court of chancery. Equity will enjoin an attempt to pervert a power of sale from its legitimate purpose. Struve v Childs, 63 Ala. 473. But it must have substantial reasons for so doing. The interests of society require that such power be not interfered with lightly. It results from contract between the parties, and the party who borrows must consider when he bargains whether he is not giving too large a power to him with whom he is dealing. Jones v Matthie, 11 Jur. 504. The jurisdiction will be exercised only when, because of fraud, or a want or illegality of consideration, or for other sufficient reasons, the enforcement of the collection is against good conscience, and would work great and irreparable injury. So the rule is stated in Glover v. Hembree, 82 Ala. 324, 8 So. 251, and in Vaughan v. Marable, 64 Ala. 60.

There is no allegation of the defendant's insolvency. In fact the contrary appears. If it should be assumed that for years the defendant has lived with the complainant under circumstances which would imply a promise to pay for her board--as to the merit of which suggestion we intend no intimation--that demand is unascertained, has no agreed relation with the mortgage debt, and in the absence of allegation of defendant's insolvency, or other special equity, the power of sale will not be enjoined in order to...