Hendrix v. American Freehold Land Mortg. Co. of London

• Decision Date: 23 May 1892
• Citation: 95 Ala. 313,11 So. 213
• Parties: HENDRIX ET AL. v. AMERICAN FREEHOLD LAND MORTGAGE COMPANY OF LONDON, LIMITED.
• Court: Alabama Supreme Court

11 So. 213

95 Ala. 313

HENDRIX ET AL. v. AMERICAN FREEHOLD LAND MORTGAGE COMPANY OF LONDON, LIMITED.

Supreme Court of Alabama

May 23, 1892

Appeal from chancery court, Limestone county; THOMAS COBBS Chancellor.

Suit by the American Freehold Land Mortgage Company of London Limited, against Irie L. Hendrix and another for an injunction and appointment of a receiver, etc. From an order made ex parte appointing a receiver, defendants appeal. Affirmed.

R A. McClellan, for appellants.

Humes & Sheffey, for appellee.

THORINGTON J.

Irie L Hendrix, one of the appellants, executed a mortgage on the 23d day of December, 1887, in favor of appellee to secure a loan of money made contemporaneously with the execution of the mortgage, said mortgage containing the usual stipulations found in mortgages taken by foreign loan companies, and among others, a power of sale in default in payment of the interest and principal notes described in the mortgage, but containing no provision authorizing the mortgagee to purchase the property at any sale that might be made under the power. The mortgage matured December 22, 1890, and there was default in the payment of both principal and interest; and thereupon appellee filed its bill in the chancery court for Limestone county,-the county in which the mortgaged lands are situated,-alleging the execution of the mortgage as above stated, the default in the payment of the mortgage debt at maturity, and that appellee had sold the property pursuant to the power of sale, and had become the purchaser at such foreclosure sale. The bill further alleges that, after the execution of the mortgage, the mortgagor sold the mortgaged property to his father, J. M. Hendrix, and placed the latter in possession thereof, and that the mortgagor then removed to Jefferson county, where he was residing when the bill was filed; that said sale was not bona fide, but was made for the purpose of hindering, delaying, and defrauding appellee "out of its just rights, and out of the rents and profits of said lands; and that defendants combined and confederated thus to hinder, delay, and defraud your orator, and prevent it from collecting the rents accruing on said place." It is also averred in the bill that on September 24, 1891, appellee demanded of said J. M. Hendrix, who was then, and also at the time of the filing of the bill, in possession of the land, that he deliver possession thereof to appellee, and that he attorn to and recognize it as his landlord, and that said J. M. Hendrix refused to deliver up possession or to attorn to appellee, and denied appellee's right to possession of the property. It is further shown by the bill that the property was insufficient to satisfy the mortgage debt; that, although it was bid in by appellee at the sale under the mortgage for as much as it was reasonably and fairly worth, there still remained unsatisfied of the mortgage debt about $200. It is also averred that both Irie L. Hendrix and J. M. Hendrix are insolvent, and that the latter had removed from the lands a portion of the crop without appellee's knowledge or consent, and that the rent was in danger of being lost to appellee, who became entitled thereto by reason of his purchase at said mortgage sale, and that said crops, unless the court should interfere by the appointment of a receiver, would be gathered and disposed of by appellants, and wholly lost to appellee. The bill further shows compliance by it with the laws of this state as to the appointment of an agent and having a well-known place of business here, and also alleges that its charter confers on it the power to make loans in this country, secured by mortgages on lands. The bill further alleges that appellee on the 17th day of October, 1891, instituted suit in the circuit court of Limestone county for the recovery of the possession of the lands from the appellants. The bill makes both Irie L. and J. M. Hendrix parties defendant, prays for an injunction, and for a receiver to take charge of, gather, and sell the crop, and also prays for general relief, and is sworn to by S. J. Felder, who is stated in the affidavit to be the agent of appellee, and, as such, authorized to make the affidavit. A copy of the mortgage is attached to the bill as an exhibit, and the bill was filed in said chancery court of Limestone...