O'Connor v. Nadel

• Decision Date: 27 April 1898
• Citation: 117 Ala. 595,23 So. 532
• Parties: O'CONNOR v. NADEL.
• Court: Alabama Supreme Court

23 So. 532

117 Ala. 595

O'CONNOR v. NADEL.

Supreme Court of Alabama

April 27, 1898

Appeal from city court of Gadsden; John H. Disque, Judge.

Bill by Charles C. Nadel against W. Scott O'Connor. From a decree overruling a demurrer to the bill, the defendant appeals. Affirmed.

The bill in this case was filed by the appellee, Charles C Nadel, against the appellant, W. Scott O'Connor, to foreclose a mortgage. The bill as amended averred the following facts: It avers that the appellant, W. Scott O'Connor, defendant below, was the owner, on the 7th of March, 1895, of the lands described in the mortgage, known as the town property of the Attalla Iron & Steel Company situated at Attalla, Etowah county, Ala.; that on or about that day, the defendant applied to the appellee, Charles C Nadel, the complainant below, for a loan of $5,000, to be secured by a mortgage on said lands; that complainant advanced and delivered to the defendant the sum of $5,000 and therefor the defendant, in order to secure the payment of the same, with interest at 6 per cent. per annum, from date did by his deed convey the above-described lands in fee simple to complainant, subject to a condition of defeasance on the payment of $5,000 on the 7th day of March, 1898, with interest as provided, payable semiannually, on the 7th of September and March of each year, till the maturity of the loan, it being agreed that the whole of said sum of $5,000 should become due, at the option of complainant, on default in the payment of any installment of interest for 30 days.

It is then averred, that neither the said sum of $5,000, nor any part thereof, has been paid to complainant, as stipulated in said deed of mortgage, for a length of time greater than 30 days; and that said principal sum and a large arrear of interest being due, complainant requested the defendant to pay the same which he has refused, and still refuses to do.

Attached to the mortgage, as an exhibit, together with the mortgage, is a bond of Louis F. Burchard, Charles I. Burchard, and Charles H. Moses, for $5,000, payable to complainant, and dated the same day of the mortgage, conditioned that if said obligors should pay to complainant, by the 7th of March, 1898, the sum of $5,000, with interest at 6 per cent. per annum, payable semiannually, until said principal sum should be paid, "as provided in a certain mortgage bearing even date herewith, made and executed by W. Scott O'Connor" to complainant, on certain property as described in said mortgage, then the obligation was to be void, otherwise to remain of force.

The bill prayed for an ascertainment of the mortgage debt, and foreclosure sale of the lands for its payment.

To the bill, as amended, the defendant demurred upon the following grounds: "(1) Said bill shows from Exhibit A to the bill that the debt is that of Louis F. Burchard, Chas. I. Burchard and Chas. H. Moses. (2) Said bill, as amended, shows on its face that Louis F. Burchard, Chas. I. Burchard and Chas. H Moses, are necessary parties respondent to the bill of complaint as amended. (3) Exhibit A shows that the debt secured is the debt or default of said Louis F. Burchard, Chas. I. Burchard and Chas. H. Moses, and is void under the statute of frauds. (4) It shows on its face that the property embraced in...