Kelly v. Martin

• Decision Date: 20 June 1895
• Citation: 18 So. 132,107 Ala. 479
• Parties: KELLY v. MARTIN.
• Court: Alabama Supreme Court

18 So. 132

107 Ala. 479

KELLY v. MARTIN.

Supreme Court of Alabama

June 20, 1895

Appeal from chancery court, Geneva county; Jere N. Williams Chancellor.

Bill by Sylvester Martin against M. W. Kelly to remove cloud from title, and for other relief. From an order overruling a demurrer to the bill, defendant appeals. Affirmed.

The third ground of demurrer, referred to the opinion, is as follows: "Because the said bill prays for a writ of injunction to issue, and there is no affidavit attached to said bill that the allegations of the same are true and correct, as required by law." Upon the submission of the cause on the demurrers, the chancellor decreed that they were not well taken, and overruled them.

T. M Espy, for appellant.

F. J Milligan and M. E. Milligan, for appellee.

HEAD J.

This case stands upon demurrer to the bill. Notwithstanding section 1870 of the Code provides that "the payment of a mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage," we are of opinion that the mortgagor of lands, in possession having fully paid the secured debt, though possibly denied the right of a bill to redeem, as such, is entitled to go into a court of equity, and have the payment established, and the mortgage delivered up and canceled, as a cloud upon his title. The payment resting in parol, the evidence of it may be readily lost by the death, removal, or failure of recollection of witnesses, or other causes, while the mortgage outstanding contains within itself enduring evidence, prima facie, that the legal title has passed to the mortgagee, and still remains in him. It is manifest therefore, that the mortgagor is subjected to the danger of the loss of his estate, unless some remedy is afforded him of establishing the payment, and withdrawing from the mortgagee the instrument of such possible loss, with which he is armed. There is no other adequate remedy than a resort to a court of equity. See Rea v. Longstreet, 51 Ala. 291; Lehman v. Shook, 69 Ala. 486; Jones v. De Graffenreid, 60 Ala. 145; Morgan v. Lehman, 92 Ala. 440, 9 So. 314. In the present case the appellee, Sylvester Martin, executed a mortgage to appellant upon 160 acres of land, the subdivisions of which are given in the mortgage and in the bill. The bill avers payment of the secured debt. It also avers that subsequently the mortgagee, Kelly, recovered of complainant, in a real action, in a court of law, 80 acres of this land, described as the N.E. 1/4 of the N.E. 1/4 of section 3, township 2, range 26, and S.E. 1/4 of S.E. 1/4 of section 34, township 3, range 26, together with 80 acres of other lands, not embraced in the mortgage, described as the S. 1/2 of the N.E. 1/4 of section 3, township 2, range 26. The judgment was by default, and the complainant avers that he was "prevented by sickness from defending the suit." The special relief prayed is that it be decreed that "said mortgage and said judgment are a cloud upon orator's title to said lands above described, and sued for by respondent in said circuit court, and to order, adjudge, and decree said mortgage and said judgment be delivered up to this court for cancellation"; and there is a prayer for an injunction against the execution of the writ of possession which complainant avers he is informed has been issued on said judgment, but which has not been executed. The purposes of the bill may be, therefore, said to be twofold: (1) To remove a cloud cast by the mortgage upon the title of complainant to the 160 acres described in the mortgage; and (2) for relief and injunction against a judgment at law obtained by the defendant-the mortgagee-for the recovery of said lands and the other 80 acres not embraced in the mortgage, in an action to which complainant had a meritorious defense, which he was prevented from making by fraud, accident, or mistake, unmixed with negligence on his part. We will see how well the bill conforms to legal requirements in the presentation of these grounds of equitable relief. It will be observed, upon reading the bill, that there is no special prayer for relief in respect of the 80 acres of land embraced in the mortgage, which were not sued for and recovered in the action at law. There is, however, a prayer for general relief, but no allegation that complainant is in possession of that 80 acres. The bill contains no allegation whatever in respect of that portion of the land recovered in the action at law which was not embraced in the said mortgage, except that Kelly "filed his suit in the circuit court of Geneva county, Alabama, against orator, to recover possession of the" (here describing all the lands sued for in that action) "under and by virtue of said mortgage"; and the further averment that complainant never executed a mortgage on...