George v. Ross

• Decision Date: 22 January 1901
• Citation: 29 So. 651,128 Ala. 666
• Parties: GEORGE v. ROSS ET AL.
• Court: Alabama Supreme Court

29 So. 651

128 Ala. 666

GEORGE v. ROSS ET AL.

Supreme Court of Alabama

January 22, 1901

Appeal from chancery court, Barbour county; W. L. Parks, Chancellor.

Bill by Fannie M. George against Sarah J. Ross and others. Judgment for defendants, and plaintiff appeals. Affirmed.

The bill sought to have set aside and declared void certain conveyances executed by said Sarah J. Ross and the other defendants, and to have the property conveyed therein subjected to the payment of complainant's debt. The bill was filed by the complainant as a creditor of the defendant Sarah J. Ross, and it was averred in the bill that the indebtedness from Sarah J. Ross to the complainant was a balance alleged to be due upon a mortgage debt contracted in 1890. It was then averred in the bill that, to secure a loan of $5,000 made by the complainant to Sarah J. Ross, the latter executed a mortgage on certain lands; that there was at different times $2,000 paid on this mortgage; that, upon default being made upon the balance remaining due, the mortgage was foreclosed, and the property was purchased at a price of $3,000,-$160 thereof going to the payment of the attorney's fees for the foreclosure, and the balance thereof being applied towards the payment of the mortgage indebtedness. It was further averred that "interest at the rate of ten per centum per annum was added in and made a part of said debt, as shown upon the face of said paper; that subsequent to the execution of said note and mortgage, and prior to the law day thereof, it was agreed and understood by and between the parties thereto that the rate of interest upon the said debt should be eight per cent. per annum; and that no other rate of interest was ever demanded on said debt"; that, after giving credit for the partial payments that had been made and the amount paid at the foreclosure sale, there remained still due upon said indebtedness $4,000. It was then averred that after the execution of said mortgage, and while Sarah J. Ross was indebted to the complainant in a large amount, she executed to several of her children, who are named as her co-defendants in the bill, voluntary conveyances of all of her property. The prayer of the bill was that these several conveyances be set aside, and the property conveyed therein be subjected to said several amounts alleged to be due the complainant. In the answer filed by the defendants it was averred that the indebtedness to the complainant was not the indebtedness of Sarah J. Ross, but was the indebtedness of her husband, and that she was only a surety thereon; that the interest charged on said indebtedness was usurious; and that she had never agreed to a reformation of the contract reducing the rate of interest from 10 to 8 per cent. per annum, nor did she ever authorize any one to do so for her. The evidence for the complainant tended to show that the loan made by the complainant to Sarah J. Ross was negotiated for her by her son C. R. Ross; that Sarah J. Ross had nothing personally to do with the loan; that the transaction was had through her agent, C. R. Ross; that C. R. Ross managed the business of Ross & Co., which was owned by Mrs. Sarah J Ross, and he had the general control of said business, and looked after it in all of its particulars; that he represented Sarah J. Ross in all matters relating thereto that he paid her taxes and gave in her property for assessment; that he insured her property for her, and paid the premiums thereon from time to time as policies were issued and renewed; that said C. R. Ross rented out the property for his mother, and collected the rents therefrom and made repairs or superintended the making of repairs on the same. And there was other evidence that said C. R. Ross paid the...