Hopkins v. Jordan

• Decision Date: 24 January 1918
• Docket Number: 5 Div. 687
• Citation: 77 So. 710,201 Ala. 184
• Parties: HOPKINS et al. v. JORDAN.
• Court: Alabama Supreme Court

77 So. 710

201 Ala. 184

HOPKINS et al. v. JORDAN.

5 Div. 687

Supreme Court of Alabama

January 24, 1918

Appeal from Circuit Court, Elmore County; Leon McCord, Judge.

Suit in equity by M.R. Jordan against M.J. Hopkins and others. From a decree for complainant, respondents appeal. Decree affirmed.

Frank W. Lull, of Wetumpka, and T.G. Hilyer, of Tallassee, for appellants.

W.A Jordan and Ball & Beckwith, all of Montgomery, for appellee.

THOMAS J.

The question of fact for decision is, Was the mortgage by Mr Hopkins and wife to Mrs. M.R. Jordan satisfied before this suit for foreclosure was brought? Hopkins became indebted to Jordan in the sum of $1,100, and, to secure the same executed on March 18, 1912, a note and mortgage on the real estate in question, due January 1, 1913, and on March 22, 1912, duly filed said mortgage for record. It is averred in the bill that on August 16, 1913, said mortgagors conveyed this real estate to Mary E. and J.Q. Adams, who went into, and are still in possession thereof; that on the date of their purchase, the latter parties executed a mortgage on the lands in question to the People's Savings Bank of Tallassee for $1,500, which mortgage was duly recorded; that on December 3, 1914, the Savings Bank "entered into an agreement with the said the Bank of Tallassee," in and by which the latter bank "acquired an interest *** in the said mortgage made by the said Mary E. Adams and J.Q Adams." Default under the Hopkins mortgage to Jordan, and the provisions for foreclosure, are averred. The bill further avers:

"That your oratrix is informed and believes, and so avers, that the contention of said M.J. Hopkins is that, on or about August 18, 1913, the said Mary E. Adams and J.Q. Adams executed and delivered to your oratrix their promissory note for $1,100 payable on the 1st day of January, 1915, together with a mortgage upon the real estate hereinabove described to secure the same, and that the giving of said note and mortgage operated as a satisfaction or extinguishment of all liability of the said M.J. Hopkins and S.E. Hopkins under the said note and mortgage dated March 18, 1912, hereinabove referred to. But your oratrix avers that said note and mortgage and debt evidenced thereby of the said M.J. Hopkins and S.E. Hopkins to your oratrix of March 18, 1912, has never been satisfied, discharged, or extinguished; that under the circumstances hereinabove set forth, if your oratrix were to undertake to sell said real estate under the power contained in said mortgage, she is informed and believes, and so avers, that no one would be willing to bid for said real estate at said sale anything like its true value. Your oratrix is further informed and believes, and so avers, that the said the Bank of Tallassee or the said the People's Savings Bank of Tallassee claims that the mortgage made to said People's Savings Bank of Tallassee by said Mary E. Adams and J.Q. Adams hereinabove referred to is a lien upon said real estate superior to the lien of the mortgage held by your oratrix, dated March 18, 1912."

The prayer was for reformation of oratrix's mortgage as to a part of the description of the lands, for an ascertainment whether the mortgage from Hopkins to Jordan was a first lien on said lands, and for a foreclosure of Mrs. Jordan's mortgage. From a decree of reformation and foreclosure, the appeal is taken.

The People's Savings Bank had...