Edge v. Bice, 8 Div. 757
| Decision Date | 18 August 1955 |
| Docket Number | 8 Div. 757 |
| Citation | 263 Ala. 273,82 So.2d 252 |
| Parties | Ellis F. EDGE v. W. O. BICE. |
| Court | Alabama Supreme Court |
Russell W. Lynne, Decatur, for appellant.
Eyster & Eyster, Decatur, for appellee.
This is an appeal by complainant from a final decree, in equity, rendered on a bill filed to redeem land from a mortgage, and the cross bill seeking to foreclose said mortgage.
The note and the mortgage given to secure it were dated August 12, 1949. The note was due and payable 'on or before January 15, 1958'. Neither the note nor mortgage contained any reference to partial payments and contained no other acceleration clause. Bearing the same date and witnessed by the same notary public, these same parties made a contract of sale and purchase of the same land included in the mortgage. On the same day the seller in that contract (who was also the mortgagee) made a deed to the purchaser (this complainant), reciting full payment of the purchase price which is the same as the consideration recited in the contract. The contract shows the full consideration of $5,500, of which $1,500 was paid in cash with the balance of $4,000 payable in installments. The note and mortgage were for the principal sum of $4,000 'with interest from date' (that means at six percent per annum Title 9, section 60, Code). The contract provides that the balance of 4,000 is payable in one hundred monthly installments of forty dollars each. To the first monthly installment of forty dollars was to be added twenty cents as interest, and on each monthly installment thereafter twenty cents was to be added to the total amount of the preceding installment; so that each would be twenty cents more than the last preceding installment. That is at the rate of six percent per annum on each installment from date to maturity.
It seems to be conceded that the contract, note and mortgage were to be taken together, and mean that the note of $4,000 due on or before January 15, 1958 was to be payable in installments as stated above.
The bill alleges in paragraph 5 'that under and by virtue of terms of the said contract made 'Exhibit A' hereto the complainant had the right and privilege of prepayment of said indebtedness without interest, and that prior to the filing of the bill of complaint in this cause, complainant tendered to the defendant the sum of two thousand and eighty dollars ($2080.00) the balance due on said mortgage, and the said defendant refused and failed to accept the same as payment in full of the said mortgage, on the ground that the same was insufficient, that is to say that interest for the full period of the time of the said mortgage was not included in said sum'. This means that complainant had paid forty-eight of the installments, aggregating $1,920 and the interest on them in the sum of $235.20, leaving unpaid the principal sum of $2,080. This amount, without interest, complainant paid into court upon filing the bill and tendered as a full and complete discharge of the balance of the indebtedness, and also offered in the alternative to do equity. He claimed the right to pay that amount without interest by reason of the terms of paragraph 5 of said contract, as follows:
'The purchaser shall have the right to pay off the balance due on the principal plus any unpaid interest and thereby shall be permitted to retire the purchase price without any penalty payment'.
Complainant contends that this means that if he pays the installments with interest to that day, as above stipulated, the balance of the principal may be paid in full at that time without paying any interest on it. The trial court did not agree with that construction of the contract. We think the ruling was manifestly correct.
The evidence of witnesses taken orally before the trial judge was not transcribed, as provided by Equity Rule 56 as amended, Code 1940, Tit. 7 Appendix, and is not before this Court. In the final decree the court observed that 'the testimony of the witnesses is of little help in resolving the controversy'. That probably explains why it was not transcribed. All facts found by the court will be taken as true. We can only consider them and those which are admitted in the pleading. Thomas v. Thomas, 246 Ala. 484, 21 So.2d 321; White v. White, 246 Ala. 507, 21 So.2d 436.
The court ascertained that the interest on $2,080 from the date of the transaction to the date of filing this suit was $499.20, which is six percent per annum for four years, (that seems to be correct); and further found that the interest on said $2,080 from the date of filing the suit to the date of the decree at six percent per annum is $41.53, and that an...
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Bentley v. County Commission for Russell County
...the trial court will be taken as true and we can only consider the facts so found and those which are admitted in the pleadings. Edge v. Bice, Ala., 82 So.2d 252. It is well established that under the general law a large discretion is vested in the county governing bodies concerning the mat......
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United Sec. Life Ins. Co. v. Kelley
...of the assignments of error on appellee is in the record. But Kelley, by not moving to dismiss, has waived this omission. Edge v. Bice, 263 Ala. 273, 82 So.2d 252. The insuring clause provides indemnity 'against loss of limb, sight or time.' 1 The two pertinent benefit schedules are: (1) Se......
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Evans v. Evans, 6 Div. 934
...as found by the court will be taken as true. Only such facts and those which are admitted in the pleadings can be considered. Edge v. Bice, Ala., 82 So.2d 252. For cases considering an analogous situation where the case was tried on the law side of the docket see Chapman v. State, 249 Ala. ......
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Brooks v. Everett, 7 Div. 504
...makes the points upon which appellant relies this court may, in its discretion, consider those points on their merits. Edge v. Bice, 263 Ala. 273, 82 So.2d 252; Kendall Alabama Co. v. City of Fort Payne, 262 Ala. 465, 79 So.2d In our opinion, appellant's brief warrants our consideration of ......