Cross v. Bank of Ensley

• Decision Date: 13 November 1919
• Docket Number: 6 Div. 896
• Citation: 84 So. 267,203 Ala. 561
• Parties: CROSS et al. v. BANK OF ENSLEY.
• Court: Alabama Supreme Court

84 So. 267

203 Ala. 561

CROSS et al. v. BANK OF ENSLEY.

6 Div. 896

Supreme Court of Alabama

November 13, 1919

Rehearing Denied Dec. 24, 1919

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Suit by Z. Cross and another against the Bank of Ensley and others to redeem from certain mortgages, with cross-bill by defendant named for foreclosure. From a decree granting relief under the cross-bill, complainants appeal. Affirmed.

Pinkney Scott, of Bessemer, for appellants.

Estes &amp Jones, of Bessemer, for appellees.

GARDNER J.

Appellant Z. Cross and his son R.C. Cross filed the original bill in this cause against the Bank of Ensley, seeking the exercise of the equity of redemption as to two certain mortgages held by said bank, one executed by Z. Cross and his wife to G.P Martin, which the bank held as transferee, and the other executed by R.C. Cross and wife direct to said bank.

It was insisted that the complainants were entitled to certain credits which would largely reduce the debt as claimed by the respondents, and that more than 8 per cent. interest had been charged.

By an amendment to the bill the ownership of the bank as to the mortgage of Z. Cross was attacked on the ground that the same had been transferred by the original mortgagee, G.P. Martin through a separate instrument which was not witnessed or acknowledged. The mortgage of R.C. Cross to the respondent bank was attacked upon the ground that it was executed on Sunday, and that it was neither witnessed nor acknowledged. It was also stated in a general way that some of the lands embraced in the mortgage of R.C. Cross were his homestead.

The bill was answered, and the respondent bank also filed a cross-bill seeking the foreclosure of said mortgages. A decree was entered referring the question of indebtedness to the register for an accounting and ascertainment of the amount due; but the parties subsequently had this decree of reference abandoned, and consented that the cause should be tried before the court by oral testimony and final decree thus rendered. This course was pursued, resulting in a decree dismissing the complainants' bill as amended, and granting to the cross-complainants the relief sought in the cross-bill, ordering a foreclosure of the mortgages after a reasonable time within which the cross-respondents were permitted to satisfy the indebtedness found to be due by the court. From this decree this appeal is prosecuted and errors separately assigned.

Upon the question of indebtedness the court found the amount due as was insisted upon by the cross-complainants. The proper determination of this question is not one free from difficulty, as the evidence, as found in the record, is not entirely clear, and leaves the mind in a state of some doubt and confusion. The burden rests upon the complainants to reasonably satisfy the court that the amount of indebtedness was less than that stated in the notes and mortgages. There was evidence before the court tending to show that, when these mortgages were placed in the hands of counsel for cross-complainants for collection and foreclosure, the question of the amount of the indebtedness was gone over, and the credits claimed by the original complainants were checked up and found to be upon the books, and that the amount of indebtedness was agreed upon. While there may be conflict in the testimony in some particulars, yet the court had the witnesses before him, and, upon a careful consideration of the evidence, we are not persuaded that his conclusion thereon should be disturbed.

There is nothing in the pleading or proof showing an agreement between the parties as to usurious interest, and the calculation was properly made at the legal rate. Pearsall v. Hyde, 189 Ala. 86, 66 So. 665.

As noted above, affirmative relief was granted cross-complainants in the foreclosure of the mortgages here involved, and we proceed to a consideration of the attacks made upon their validity. The evidence tends to show that R.C. Cross was the son of Z. Cross, and the execution of the mortgage by him was for the better security of his father's indebtedness as well as further advancement to his father, and this was the extent of his...