Holman v. Harper

• Decision Date: 21 May 1931
• Docket Number: 6 Div. 887.
• Citation: 223 Ala. 100,134 So. 863
• Parties: HOLMAN ET AL. v. HARPER.
• Court: Alabama Supreme Court

134 So. 863

223 Ala. 100

HOLMAN ET AL. v. HARPER.

6 Div. 887.

Supreme Court of Alabama

May 21, 1931

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Bill to foreclose a mortgage by M. I. Harper against Norris Holman Lillian Holman, and Clay Holman, as guardian for Norris Holman, with a cross-bill by respondents to cancel said mortgage as a cloud upon title. From a decree sustaining a demurrer to the cross-bill, respondents appeal.

Reversed and remanded.

O. B Cornelius, of Birmingham, for appellants.

McEniry & McEniry, of Bessemer, for appellee.

GARDNER J,

The amended cross-bill seeks the cancellation of the mortgage executed by Norris Holman upon the ground of his mental incapacity at the time of its execution. It avers that the mortgagee had knowledge or notice of such insanity at the time of the execution of the mortgage, and that complainant the assignee thereof, had like knowledge or notice at the time of his purchase. These averments suffice to meet the assignments of demurrer 2, 3, 4, and 5. Street v Treadwell, 203 Ala. 68, 82 So. 28.

Assignments 6 and 7 are refuted by the express averments of the bill, and assignment 1 is the general ground of a want of equity. The question of the sufficiency of bills of this character since the passage of the act of 1901 (Acts 1900-01, p. 1943, § 6822, Code 1923) was considered in Thomas v. Holden, 191 Ala. 142, 67 So. 992, and Hale v. Hale, 201 Ala. 28, 75 So. 150; Hughes v. Dempsey, 209 Ala. 375, 96 So. 435.

Appellee argues upon the assumption the cross-bill shows the receipt and retention of a valuable consideration without an offer to restore. But the cross-bill contains no averments as to the consideration, and whether subject to demurrer for such failure we need not stop to inquire, as no assignment of demurrer takes the point. The question of restoration is therefore not here presented. As said in Sumners v. Jordan, 220 Ala. 402, 125 So. 642: "A failure in the bill to offer to make restitution does not render it subject to demurrer unless it shows that the mortgagee advanced something of value upon the faith and security and as the consideration of the mortgage. *** If the facts justify the relief to complainant only upon the condition that restitution be made, and such facts do not appear in the bill, the respondent may set them up in an answer as defensive matter."

Though we express no opinion upon the matter, we may properly suggest the following authorities for consideration upon the question argued in brief, but not presented by the assignments of demurrer: 32 C.J. 748; Martin v Cameron, 203...