Decker v. State Nat. Bank

• Decision Date: 29 March 1951
• Docket Number: 6 Div. 940
• Citation: 255 Ala. 373,51 So.2d 538
• Parties: DECKER v. STATE NAT. BANK.
• Court: Alabama Supreme Court

Page 538

51 So.2d 538

255 Ala. 373

DECKER v. STATE NAT. BANK.

6 Div. 940.

Supreme Court of Alabama.

March 29, 1951.

R. G. Kelton, of Oneonta, for appellant.

J. T. Johnson, of Oneonta, for appellee.

LIVINGSTON, Chief Justice.

The case went to the jury on counts three and four of the complaint. Count three is in detinue to recover one superstreamline 9-foot Walrus Soda Fountain. County four claims thirty-five hundred dollars as damages for the alleged conversion of the same described personal property. The jury returned a verdict in favor of the defendant. Motion for a new trial was denied, and the plaintiff in the court below prosecutes this appeal.

The record shows that on October 6, 1947, Luther E. Parker, Jr., executed a note and chattel mortgage on the soda fountain to the Citizens National Bank at Oneonta, Alabama, to secure a loan of $410.00. The chattel mortgage secured the payment of only the note given.

The State National Bank at Oneonta, Alabama, held two notes and mortgages executed by Luther E. Parker, Jr., to secure loans made him by said bank. One of these mortgages list many items of personal property and was given to secure a loan of $4081.60. The other mortgage was on one Ford jeep and was given to secure a loan in the amount of $471.50.

Parker's indebtedness to the Citizens National Bank became past due on April 7, 1948. He requested the State National Bank to purchase the note and mortgage held by the Citizens National Bank and on June 5, 1948, the Citizens National Bank transferred the note and mortgage to the State National Bank without recourse.

Thus the State National Bank became the owner of the three notes and mortgages, and on June 8, 1948, Parker executed three extension or renewal notes and mortgages. All of the mortgages were recorded in the office of the judge of probate of Blount County, where the parties lived and the property was located.

Subsequently, on September 21, 1948, Wilma Decker purchased from Parker the soda fountain in question and immediately tendered to the State National Bank $460.80 to pay the indebtedness secured by the mortgage on the soda fountain. The bank refused the tender.

The renewal note and mortgage executed and delivered by Parker to the State National Bank on June 8, 1948, covering the soda fountain, contained the following clause: 'To secure the above sum and any other liabilities of any maker of this note to said payee, due or that may become due, new existing or hereafter contracted, the undersigned mortgage, sell and convey to the payee the following described property warranted to be free from encumbrances, towit: One 1947 Super Stream Line 9 Footer Watrus Soda Fountain.'

At this time Parker was indebted to the State Mational Bank in the sum of $4081.00, evidence by a note and mortgage; the additional sum of $452.00, evidence by a note and mortgage, and the additional sum of $191.23 evidenced by a note and mortgage.

On November 1, 1948 the State National Bank gave notice of foreclosure under the power of sale contained in its mortgage and became the purchaser of the property here sued for on November 8, 1948.

Appellant earnestly insists that a tender by the mortgagor or his assignee or transferee of the full amount of the mortgage debt to the mortgagee, and kept good, before the taking of the property into possession by the mortgagee for the purpose of foreclosure, divests the title of the mortgagee evidence by the mortgage, and the mortgagee thereafter has no right of possession. Maxwell v. Moore, 95 Ala. 166, 10 So. 444; Hampton v. Stewart, 240 Ala. 2, 194 So. 509. We have no quarrel with this principle of law, but did the offer by appellant to appellee of $460.80, kept good and paid into court, under the facts shown amount to a tender? We think not.

It is held that in order for a tender to be effective nothing short of everything that a creditor is entitled to receive is sufficient, and a debtor must, at his peril, tender the entire sum due. Ebersole v. Addington, 156 Ala. 575, 46 So. 849; Smith v. Anders, 21 Ala. 782; 62 C.J. 600.

Appellant contends that each of the three notes and mortgages held by the State National Bank were separate and distinct indebtednesses and that each mortgage was given to secure the accompanying note.

The case of Marcus v. Robinson, 76 Ala. 550, relied upon by appellant, reveals facts quite different from those here involved. The mortgage there under consideration was given to secure future advances necessary to make a crop, and the Court merely held that certain items such as whiskey and tobacco were not necessary to make a crop and that therefore such items were not in contemplation of the parties and not secured by the mortgage given.

In Winston v. Farrow, Ala.Sup., 40 So. 53, it was held that a mortgage given primarily to secure a certain sum, recited that it was to 'secure this debt and all other sums due prior to the payment hereof', sums due the mortgagee at any...