Crew v. Peoples Trust & Savings Bank, 5 Div. 299.
| Decision Date | 11 April 1940 |
| Docket Number | 5 Div. 299. |
| Court | Alabama Supreme Court |
| Parties | CREW v. PEOPLES TRUST & SAVINGS BANK. |
Rehearing Denied May 23, 1940.
Appeal from Circuit Court, Coosa County; W. W. Wallace, Judge.
Bill in equity by R. H. Crew against the Peoples Trust & Savings Bank for accounting and redemption. From a decree ascertaining the amount necessary to redemption, complainant appeals.
Corrected and affirmed.
John A Darden, of Goodwater, and Hill, Hill, Whiting & Rives and Albert J. Pickett, Jr., all of Montgomery, for appellant.
Chas S. Bentley, of Goodwater, and Pruet & Glass, of Ashland, for appellee.
Bill for an accounting, and redemption.
The case made by the bill, and the evidence offered on submission, discloses numerous transactions, some separate and distinct between the complainant, a customer, and the respondent, a banking institution. The transactions here involved commenced as far back as 1927. During that period of time many dealings were had between the parties evidenced by numerous loans made the complainant on divers occasions by the respondent, and notes, and renewal notes, executed by the complainant, payments thereon, and numerous interest charges.
The bill charges, in general terms, that in many of the transactions usurious interest was charged and paid, and that after all proper credits are allowed, and all usurious interest deducted, the respondent would be due and owing the complainant a large sum of money, to wit, $2,000.
The bill also charges that the real estate mortgage which had been foreclosed was void, in so far as it purported to convey the homestead of the grantors, for the reason that there was no separate acknowledgment of the wife. It also prayed for cancellation of the same to that extent.
Complainant offers to do equity.
The respondent's answer admits that there had been many transactions between the parties during the time covered by the bill, and that it interposed no objection to the accounting prayed for in the bill. It specifically denied that any of the transactions were infected with usury, and also denied that the real estate mortgage, as to any of the property conveyed by it, was void for any reason.
On submission for final decree, the court, without a reference to the register, proceeded to determine all questions as to the state of the account between the parties.
The court decreed that the mortgage on the real estate was valid and binding between the parties thereto; that the foreclosure of said mortgage was "regular and legal;" that the sum of $250 was and is a reasonable amount to be allowed as an attorney's fee in the foreclosure proceedings had under the power contained in the instrument, and that the recording fee of $6.05, the advertising fee of $13.06 and an item of $40.38 paid for insurance, making a total of $309.49, were proper charges to be deducted from the amount for which the property was sold at foreclosure. The court further found that the amount bid for the property at foreclosure sale was $2,300, and that after deducting the above-stated items of cost, there remained the sum of $1,990.50 to be applied in liquidation of the mortgage debt, leaving a balance due upon said mortgage debt of $309.49.
The court also found that the complainant was due and owing to respondent the sum of $232.63 on note given respondent by complainant on July 1, 1930; that there was still due and owing to respondent the sum of $346.42 on complainant's note dated June 2nd, 1930; that there was still due and owing by complainant the sum of $284 on note dated June 10, 1931; and that there was still due and owing by complainant the sum of $46.86 on the second note dated June 10, 1931. The entire balance found to be due and owing by complainant to respondent, after the foreclosure of the mortgage, and after charging the respondent with the net proceeds of said sale of the lands, was $1,219.40.
The court also found that the respondent had not "been guilty of collecting, or seeking to collect usurious interest." This we construe to mean that the court found that the transactions were not infected with usury.
It appears from the evidence that the complainant had pledged certain cotton, fifteen bales, to the payment of certain of his indebtedness. It does not appear that this cotton was pledged as security for the payment of the indebtedness secured by the real estate mortgage.
The court found and decreed that the complainant was entitled to redeem the land and the cotton by the payment to the respondent of the sum of $3,519.40 (made by the addition of the above balance of $1,219.40 and the mortgage debt of $2,300), "together with all storage and insurance charges upon said cotton, which had been paid by respondent since the cotton had been in its possession to the date of this decree." The decree further provided that if redemption was not had within 30 days, the register was ordered to sell said cotton "at the highest market price" and the amount realized from the sale to be applied to the payment of the $1,219.40, the amount ascertained to be due and owing by complainant to respondent, being the balance due on the real estate mortgage debt, after the foreclosure, and on the above-mentioned four notes.
The principles of law applicable to this case are well understood, and we deem it wholly unnecessary to restate the same.
Upon a careful examination of the evidence, we find ourselves in full accord with the trial court in its decree holding the real estate mortgage, executed February 5th, 1929, to secure a recited indebtedness of $2,700, was duly and legally executed by the complainant and his wife, and that the contention that there was no separate acknowledgment by the wife is not supported by the evidence. The notary's evidence, given orally before the court, on the question is full, clear and convincing, and shows that the separate acknowledgment of the wife, appearing on the instrument, speaks the truth.
We are also in full accord with the trial court that there was a balance due and unpaid of $2,300 on the principal of said mortgage indebtedness at the time it was foreclosed. But we are not in accord with the lower court in holding that said mortgage debt was not infected with usury. The evidence shows, conclusively, to the contrary. The testimony of Mr Porter, a witness for the respondent bank, shows that for the forbearance of the collection of a debt of $2,500 for a period of about nine months the respondent purposely charged $200 interest, and this usurious interest was included in the note and mortgage. ...
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