Johnson v. Maness, 8 Div. 713
| Decision Date | 21 May 1936 |
| Docket Number | 8 Div. 713 |
| Citation | 232 Ala. 411,168 So. 452 |
| Parties | JOHNSON v. MANESS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marshall County; A.E. Hawkins, Judge.
Bill for redemption by Logan Maness against J. Leroy Johnson. From a decree for complainant, respondent appeals.
Reversed and remanded.
J.A Lusk & Son, of Guntersville, for appellant.
Wm. C Rayburn, of Guntersville, for appellee.
This is a bill by the mortgagor of real property against the mortgagee, seeking to redeem the land.
The bill alleges that the complainant, on the 1st of December 1928, executed a mortgage to the defendant on the land described in the bill. The amount of the mortgage debt, when due, and for what it was contracted is not stated.
The bill further avers, "That said mortgage being past due and unpaid complainant did on the 10th day of January, 1933, make, execute and deliver to said defendant a deed conveying to him said property above described and at the same time delivered up possession of said property to defendant, with the agreement then and there made that complainant should have two years from the date of said deed in which to pay off said indebtedness and redeem said land from said mortgage indebtedness and defendant agreed with complainant that if within two years from said date the complainant paid off said indebtedness defendant would deed said land back to complainant and cancel said mortgage"; that the defendant is in possession of said land "under said deed above referred to and has been in possession of said land since the date of said deed"; that the complainant on December 1, 1933, made demand on the defendant for a statement as to the amount of the mortgage debt and the lawful charges necessary to be paid as an incident to redemption, and the defendant refused to furnish such statement.
There is an absence of affirmative averment that there was, when the bill was filed, a debt due from the complainant to the defendant, and that such deed was given and so intended by both parties as a security for such debt. This much was necessary to give the bill equity as one to have the deed declared a mortgage. Richardson v. Curlee et al., 229 Ala. 505, 158 So. 189; Pearsall v. Hyde, 189 Ala. 86, 66 So. 665; Douglass v. Moody et al., 80 Ala. 61.
There is also an absence of averment in the bill showing that the defendant as mortgagee used his "superiority to oppress the debtor, or drive an unconscionable bargain, or by taking advantage" of the mortgagor's necessitous condition to obtain the land at a grossly inadequate price. Such averments are necessary to justify the court in applying the principles declared in Pearsall v. Hyde, supra, and reaffirmed in Shaw v. Lacy, 199 Ala. 450, 452, 74 So. 933. This is true, although the law places the burden of proof on the mortgagee "to show that the transaction was fair and honest--free from the infection of fraud, oppression, or any form of undue influence." 199 Ala. 450, 452, 74 So. 933, 934.
The averments of the bill bring complainant's case within the principle declared in Peagler v. Stabler, 91 Ala 308, 311, 9 So. 157, 158: "There is no reason why a mortgagor and mortgagee may not contract with each other that a sale and conveyance of the mortgaged property to the mortgagee shall stand for a more formal foreclosure ( Stoutz v. Rouse, 84 Ala. [ 309] 3...
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