Franklin v. Long

• Decision Date: 04 February 1915
• Docket Number: 905
• Citation: 191 Ala. 310,68 So. 149
• Parties: FRANKLIN v. LONG.
• Court: Alabama Supreme Court

68 So. 149

191 Ala. 310

FRANKLIN v. LONG.

No. 905

Supreme Court of Alabama

February 4, 1915

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Bill by T.L. Long against B.J. Franklin and another for an injunction against the trust company from surrendering Franklin certain notes and mortgages, and for an accounting. From an order refusing to dissolve the temporary injunction, the movant Franklin, appeals. Affirmed.

Gunn &amp Powell, of Jasper, for appellant.

Davis &amp Fite, of Jasper, for appellee.

GARDNER J.

This appeal is from a decree of the Walker county law and equity court overruling motion of the respondent (appellant) B.J Franklin, to dissolve the temporary injunction issued in the cause, for a want of equity in the bill and upon the sworn answer of said respondent. From the contract, a copy of which is made Exhibit A to the bill, it appears that complainant and respondent, B.J. Franklin, agreed upon the sale of a certain mortgage executed to said Franklin by one Sylvanus Franklin for a total consideration of $1,312.73, payable in installments due at stated times as evidenced by 15 notes executed by complainant. Pursuant to the terms of the contract said notes, together with the mortgage of said Sylvanus Franklin, were deposited with the Jasper Trust Company, to be held by it in escrow, to be delivered by said bank to complainant, T.L. Long, upon payment by him of said notes, with interest due thereon, and it was further provided that said bank was thereupon authorized to transfer in the name of said B.J. Franklin the said Sylvanus Franklin mortgage to complainant. It was also stipulated in the contract that in case of a default of 30 days in the payment of any two consecutive notes, then after 10 days' notice in writing had been given by respondent, Franklin, to complainant, a copy of which was to be left with the trust company, the remaining unpaid notes should become due and payable and the notes and the mortgage held by the bank in escrow should be delivered to the said B.J. Franklin.

The bill shows the payment of many of the notes by complainant, but also shows a default and that complainant in the first part of September, 1913, received notice from said Franklin, claiming the 30 days' default in the payment of two of said notes consecutively. It is further alleged that after receiving said notice complainant and respondent, Franklin, agreed upon certain credits to be applied upon the said matured notes, to wit, the sum of $186.85, being an account due by said Franklin to complainant and $29.55, being an amount complainant had paid to Jasper Trust Company, for said Franklin, and $243.25, agreed to be credited by virtue of an agreement of sale to said Franklin of a certain judgment held by complainant against one Waldrop. It is alleged that these credits agreed upon by the parties were more than sufficient to satisfy the notes for $100 each due in the months of March, April, May, and June, 1913, and that it was then agreed that said Franklin would come to Jasper and have a settlement with complainant, and the balance of the notes which had matured, if any, would then be taken up and the remaining number of said notes would be paid as they matured. It is then averred in the bill:

"Complainant further alleges that the said Franklin fraudulently and with intent not to carry out the said agreement, and for the purpose of securing possession of the said mortgage so held by the Jasper Trust Company, in escrow, did, after the making of the said agreement with complainant, wholly fail and refuse to come to Jasper and have the settlement with complainant as he had agreed, and did demand of the said Jasper Trust Company the surrender of the said mortgage to him and also the surrender to him of each and all of the said notes of complainant to said Franklin which are held by said Jasper Trust Company, including those that have been settled and satisfied in full under the agreement hereinabove set forth."

It is averred that said Franklin has demanded the said papers of the said Jasper Trust Company, and said trust company is threatening to turn said papers over to said Franklin and thereby deprive complainant of his right to have the said Sylvanus Franklin mortgage transferred to him. The bill shows a payment into court of the sum complainant insists is now due and a readiness, willingness and ability to pay any other amount the court may ascertain to be due upon any matured notes, as well also as those subsequently maturing as they shall become due. We are of the opinion that the equity of the bill may well be rested upon the jurisdiction of a court of equity to relieve against a forfeiture.

In Root v. Johnson, 99 Ala. 90, 10 So. 293, it was said:

"Forfeitures are

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