Harris v. Jones

• Decision Date: 04 June 1914
• Docket Number: 533
• Citation: 65 So. 956,188 Ala. 633
• Parties: HARRIS v. JONES et al.
• Court: Alabama Supreme Court

65 So. 956

188 Ala. 633

HARRIS v. JONES et al.

No. 533

Supreme Court of Alabama

June 4, 1914

Appeal from Chancery Court, Coosa County; W.W. Whiteside Chancellor.

Bill by T.N. Harris against E.V. Jones and others.From a decree dismissing the bill, complainant appeals.Reversed and remanded.

H.A Dickinson, for appellant.

Felix L. Smith, of Rockford, for appellees.

DE GRAFFENRIED, J.

This is a bill to redeem the lands described in the bill from a mortgage or mortgages, and, as an incident to this main purpose of the bill, the complainant prays that respondents who are in possession of the land, be required to account to the complainant for the rents, incomes, and profits which they have received, or by the exercise of reasonable care and diligence might have received, from the land since they became possessed of it, and also for waste which, the bill alleges, has been committed by the respondents upon the said land.

The rules which fix the liability of a mortgagee in possession to account to the mortgagor for rents, incomes, and profits and waste are fully set out and explained by this court in the case of American Freehold Land Mortgage Co. v Pollard,132 Ala. 155, 32 So. 630, and need not be here repeated.

2.It appears from the allegations of this bill that Mary W. Harris, on September 25, 1897, executed and delivered to E.V. Jones, one of the respondents to the bill, upon the lands described in the bill, a mortgage to secure the payment of a note for $100 due October 1, 1901.It further appears that said E.V. Jones transferred and assigned unto Julius Jones, the other respondent to the bill, a half interest in said note and mortgage.The bill further alleges that upon the execution of the mortgage the said E.V. Jones assumed possession of the said lands, and that since that time up to the filing of the bill the said E.V. Jones and Julius Jones have been in possession of the land, using the same, collecting the rents and income from the same, and that during said period they have committed divers acts of waste upon the same.The bill further alleges that subsequent to the execution of the above-mentioned mortgage, and prior to May 1, 1901, the said Mary W. Harris became insane, and that while she was thus insane, and for that reason incapable of binding herself or her property by any contract or conveyance, the said E.V. Jones delivered into her possession the above mortgage, and at the same time had her, to wit, on May 1, 1901, execute unto him another mortgage on said land to secure a note for $200 due October 1, 1911.The bill further alleges that at the same time, to wit, on May 1, 1901, the said E.V. Jones had the said Mary W. Harris to execute and deliver to him a lease of the said lands, which lease by its terms expired on December 31, 1911.

A copy of this lease is attached to the bill, and in the lease it is recited that, in consideration of "one dollar paid by said E.V. Jones to said Mary W. Harris on this day, the said Mary W. Harris does hereby demise, lease, and farm let," etc., the lands described in the bill for a period of ten years to said E.V. Jones, the lease to terminate on December 31, 1911.The bill further alleges that between the execution of the first mortgage, in 1897, and October 14, 1911, the said E.V. Jones and Julius Jones, in rents, incomes, and profits obtained from said lands, received largely more than enough to fully pay off and discharge any lawful lien which they held upon said property by virtue of either one of the above mortgages, taxes paid by them, etc., but that nevertheless on October 14, 1911, the said E.V. Jones sold the said lands under the power contained in said mortgage to secure said note of $200, and at said sale that the said Julius Jones bid the said lands in, and that since said sale the said E.V. Jones and Julius Jones have been in possession of the said lands, using the same, and collecting the rents, etc., for them.

3.The bill further shows that the said Mary W. Harris shortly after she executed the mortgage securing the $100, and before she became insane, executed her last will.By this will she devised unto complainant, her son, all of her property, and made him the executor of the will.In this will she mentions expressly the said mortgage securing the note for $100, and states that her said son had agreed to pay it.The bill shows that the said Mary W. Harris died in the insane asylum prior to the filing of the bill, and that her said will had been formally probated.

The complainant files this bill as executor and as devisee.In the billhe alleges that the mortgage securing the $200 was void because of the insanity of the mortgagor, and alleges that the sale had thereunder was "fraudulent and void."He also alleges in the bill that the rents and profits arising from the lands and the waste committed by the respondents while in possession of the land amount to a sum in excess of the indebtedness secured by the mortgage securing the note for $100 and any sum which the said E.V Jones and Julius Jones may have expended for taxes or otherwise constituting a charge in their favor upon said land.The bill prays that the complainant be let in to...