Dinkins v. Latham

• Decision Date: 14 February 1918
• Docket Number: 3 Div. 309
• Citation: 202 Ala. 101,79 So. 493
• Parties: DINKINS et al. v. LATHAM.
• Court: Alabama Supreme Court

79 So. 493

202 Ala. 101

DINKINS et al. v. LATHAM.

3 Div. 309

Supreme Court of Alabama

February 14, 1918

Rehearing Denied April 25, 1918

Appeal from Chancery Court, Lowndes County; O.S. Lewis, Chancellor.

Bill by Rudolph Dinkins and others against H.S. Latham. From the decree rendered, complainants appeal. Affirmed.

The amendment to the bill, referred to in the opinion, is as follows:

A10. That if complainants are mistaken in their contentions hereinabove set out relative to the legal operation and effect of that particular paper writing referred to and designated as "Exhibit A," which purports to have been executed on January 5, 1895, reference being hereby made to the same, and as to its sufficiency as a valid mortgage and if same is held to be a valid mortgage, then the complainants allege that there has never been a due foreclosure of said mortgage under the powers therein contained, and there has never been any valid exercise of the power of sale contained in said mortgage, and upon the death of said Sallie B. Dinkins her equitable right to redeem the lands described in said "Exhibit A" from said mortgage given by her and the said S.M. Dinkins to said C.W Rudolph passed to complainants as heirs at law of said Sallie B. Dinkins, and that the equity of redemption which passed to complainants upon the death of their said mother, Sallie B Dinkins, now resides in complainants, and complainants ought not to be precluded by any of the paper writings executed subsequent to said mortgage, "Exhibit A," or in any other manner should they be prevented and precluded from redeeming said premises of which said H.S. Latham has possessed himself in the manner as herein set forth; that said complainants at the time of said alleged foreclosure, and an exercise of the power of sale contained in said mortgage, were infants of tender years, and the price which said property is alleged to have been sold for at said alleged sale was greatly inadequate and greatly disproportionate to the market value of said property; that if complainants are mistaken in all of their contentions hereinabove set forth relative to the legal operation and effect of said paper writing purporting to be said mortgage, bearing date January 5, 1895, and in their contentions as to the legal operations and effect of the transactions and things purporting to be a foreclosure of said mortgage, and purporting to be a valid exercise of the power of sale contained therein, which is hereinabove referred to, then the complainants allege that on, to wit, the date of said alleged foreclosure of said mortgage, said S.M. Dinkins, hereinabove referred to, was hard pressed for money, and was desirous of obtaining a loan from the respondent, and S.A. Latham, in order to obtain money with which to redeem said property herein mentioned from said mortgage, which said mortgage was about to be foreclosed, and said respondent and S.A. Latham were desirous of making said loan to said Dinkins in an amount sufficient to pay off indebtedness due said Rudolph, which was secured by said mortgage, and at said time said Dinkins did not have the money with which to pay off said indebtedness; that said alleged foreclosure of said mortgage, and alleged sale thereunder, referred to in paragraph of said bill of complaint beginning with the word "Fourth," and the written instrument executed as evidence thereof and designated as "Exhibit B," and the instrument executed and referred to in paragraph beginning with the word "Fifth" and designed and marked as "Exhibit C," and the written instrument referred to as "Exhibit D," and the execution of said paper writing, was nothing more nor less than an indirect method of making a loan by said Latham and his brother S.A. Latham to said S.M. Dinkins, and an indirect method of causing this property, herein referred to, to be put up as security for said loan; that contemporaneously with the execution of the paper writing referred to as "Exhibit C" there was executed the paper writing referred to as "Exhibit D," and the execution of both of said papers constituted but one transaction, and were given and executed as security for the loan made on that date to the said Dinkins by said Lathams, said loan being in the sum of $2,969.88, which amount was the amount needed by said Dinkins to pay off the indebtedness due said Rudolph at said time; that said paper writing referred to as "Exhibit D" purports to be a lease sale contract, and purports to be given for the lease of the land herein referred to, but which was in truth and in fact, together with the paper writing referred to as "Exhibit C," really intended to secure the debt then due respondent, and were so accepted by respondent, and that same was intended only as a mortgage, and that by said instrument referred to as "Exhibit D" the complainants were also given the right upon certain contingencies to redeem said lands, which was in truth and in fact the equity of redemption, and that said complainants have never been precluded from exercising said right given them of redeeming said lands, and such equity of redemption has never been cut off, and that any rights which were given said Dinkins under and by virtue of aforesaid transactions inured to the benefit of said complainants; and complainants allege that, as a part of said transaction, it was understood and agreed by said respondent and said Latham that said Dinkins was to remain in possession of said lands, and was not to pay any rent for the use and occupation of same, and that said Dinkins did remain in possession of same until, to wit, November 25, 1904, as hereinabove stated under said agreement; and complainants allege that respondent has repudiated said agreement by refusing to deliver or to surrender and deliver to complainants the deeds which they agreed to execute in said "Exhibit D," upon the offer of complainants to pay respondent the proper amount due him, with lawful charges thereon, and in refusing to treat said written instruments hereinabove referred to as a mortgage, notwithstanding there was a parol understanding and agreement by and between the respondent and said Dinkins which was

made contemporaneously with and a part of the foregoing transaction, that said transaction and the written instrument executed in pursuance thereof would be treated as a mortgage to secure to respondent and his brother S.A. Latham the amount loaned said Dinkins, and said H.S. Latham is endeavoring to treat said transactions, together with the deed referred to as "Exhibit E," as a deed to him in fee simple of the full title to said property, and not as a mortgage; and complainants allege that at the time of the execution of the above-described papers, and at the time of the filing of this bill of complaint, the reasonable market value of said property was, to wit, $10,000, which was several times greater than the amount loaned said Dinkins, as aforesaid, and that respondent knew at the time such transactions were made that the market value of said property was as aforesaid, and that said transaction grew out of the negotiations of a loan of money to said Dinkins by said H.S. and S.A. Latham.

Leader & Ewing and Henry Upson Sims, all of Birmingham, for appellants.

W.A. Gunter, of Montgomery, for appellee.

THOMAS J.

The purpose of the bill is to have the mortgage in question declared void on the grounds (1) that the husband did not join therein in such manner as to make effectual a conveyance of the wife's real property; (2) that by the attempted foreclosure the power of sale contained therein was never executed by the mortgagee; (3) that the Rudolph deed was an assignment by mortgagee of her interest in the lands, and the agreement of appellee with the husband of the mortgagor-wife created a new right in her minor children, the complainants--a renewal mortgage which has not been foreclosed.

The complainants pray that, if any one of the above aspects of the bill is true, all clouds be removed from the reversioners' interest, and such interest fully established in them; but, on the other hand, if the mortgage is valid and unforeclosed, that they be permitted to exercise the right of redemption.

The complainants are averred to be the only surviving children of Sallie B. Dinkins, who died September 17, 1896, and S.M. Dinkins, who was living at the time of the filing of the bill; it is further averred that complainant Rudolph Dinkins became 21 years of age on May 14, 1912, and that Margaret Dinkins was over the age of 18 years, and under the age of 21 years, but that her disabilities of nonage were removed, and she was given the right to sue and be sued, by a decree of the chancery court rendered March 24, 1913.

The mortgage in question, together with the note securing the same, bearing date January 5, 1895, signed by Sallie B. Dinkins and her husband, S.M. Dinkins, and payable to C.W. Rudolph, has been fully considered by this court. See Dinkins v. Latham, 154 Ala. 90, 45 So. 60; Dinkins v. Latham, 168 Ala. 668, 52 So. 1037. The chancellor did not err in decreeing that it was a conveyance by Sallie B. Dinkins of her therein described real properties. Townley v. Corona Coal & Iron Co., 77 So. 1; Bowles v. Lowery, 181 Ala. 603, 62 So. 107; Sloss-Sheffield Co. v. Lollar, 170 Ala. 239, 54 So. 272; Fite, Porter & Co. v. Kennamer, 90 Ala. 470, 7 So. 920; Madden v. Floyd, 69 Ala. 221; Hammond, Adm'r, v. Thompson, 56 Ala. 589.

In the case of Johnson v. Goff, 116 Ala. 648, 650, 22 So. 995, Judge Brickell qualified his statement of the effect of former decisions of this court touching a conveyance by the limitation, "when there is nothing in the deed to indicate an intention on their part to become grantors."

To appellants' invitation that we overrule the...