Luverne Land Co. v. Bank of Luverne

• Decision Date: 20 April 1917
• Docket Number: 4 Div. 645
• Citation: 200 Ala. 85,75 So. 461
• Parties: LUVERNE LAND CO. et al. v. BANK OF LUVERNE.
• Court: Alabama Supreme Court

75 So. 461

200 Ala. 85

LUVERNE LAND CO. et al. v. BANK OF LUVERNE.

4 Div. 645

Supreme Court of Alabama

April 20, 1917

Rehearing Denied May 24, 1917

Appeal from Chancery Court, Crenshaw County; O.S. Lewis, Chancellor.

Suit by the Luverne Land Company and others against the Bank of Luverne. From the decree, complainants appeal. Affirmed.

The bill in this case was filed by the Luverne Land Company, a corporation, Folmar Mercantile Company, a corporation, and George A. Folmar, T.R. Folmar, and Eva Folmar, against the Bank of Luverne, appellee, for the purpose of enjoining the sale of certain property described in the mortgage executed by the appellants to the appellee on April 24, 1909, for $2,018.76; the appellants alleging in their said bill that the mortgage debt had been paid and discharged. The appellee answered the bill, denying that payment had been made in full, and alleging that there was still a balance due on said mortgage. The cause was duly submitted upon the motion of the appellants to the special register as suggested by them. In due time said special register held his reference in said cause, and on January 10, 1916, filed his report on said reference wherein he held and decided that the appellants were due a balance on said mortgage of $441.92. On January 20, 1916, appellants filed exceptions to the report of said register, which exceptions, after due consideration, were overruled, and the report of the register finding said sum of $441.92 was confirmed by the court. From this decree complainants prosecute this appeal.

W.A Gunter, of Montgomery, for appellants.

Frank B. Bricken, of Luverne, for appellee.

GARDNER J.

It is the first insistence of counsel for appellants that the statement of the account between the mortgagors and the mortgagee, as found in the report of the special register on reference, is incorrect, in that the same includes the following items of indebtedness: $50, $160, and $1.50--which items formed no part of the mortgage indebtedness. These several items were evidenced by notes as follows: One for $50, signed by T.R. Folmar and George A. Folmar; another, for $160, executed by George A. Folmar and S.E. Folmar; and the third, for $1.50, executed by George A. Folmar. Each of these was executed after the execution of the mortgage of April 24 1909. The said mortgage of April 24, 1909, was executed by the Luverne Land Company, Folmar Mercantile Company, George A. Folmar, T.R. Folmar, and Eva Folmar; and, so far as here appears, the said mortgage debt was the joint and several debt of each of the said mortgagors. The said mortgage, as shown by its recitals, was given to secure the amount stated $2,018.76, "and any other advances, indebtedness, or liabilities to the owner or holder thereof."

It therefore seems clear that these items were properly included as a part of the mortgage indebtedness.

It is next very strenuously insisted that the proper credit was not given for an item of $495.40. It seems that ...