McDermott v. Halliburton

• Decision Date: 13 March 1930
• Docket Number: 8 Div. 155.
• Citation: 220 Ala. 553,126 So. 854
• Parties: MCDERMOTT ET AL. v. HALLIBURTON ET AL.
• Court: Alabama Supreme Court

126 So. 854

220 Ala. 553

MCDERMOTT ET AL. v. HALLIBURTON ET AL.

8 Div. 155.

Supreme Court of Alabama

March 13, 1930

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Bill to redeem by John C. McDermott and others against Docia Halliburton and another, and petition by respondent Halliburton for appointment of a receiver. From a decree appointing a receiver, complainants appeal.

Reversed and remanded.

D Isbell, of Guntersville, for appellants.

Ernest Parks, of Scottsboro, for appellees.

SAYRE J.

This is an appeal from a decree, made on the petition of the mortgagee, appointing a receiver to take charge of a large tract of land pending a decree on appellants' bill to redeem. On a former appeal this court ruled that a receivership had been erroneously ordered. McDermott v Halliburton, 219 Ala. 659, 123 So. 207. Thereafter the petition was amended and a decree again rendered ordering the appointment of a receiver. This appeal followed.

There is no occasion to repeat what was said on the former appeal as to the circumstances in which a receivership will be ordered on the petition of the mortgagee. That decision and the opinion in support of it are approved in all respects. On that appeal two deficiencies in the case of the mortgagee as affecting her right to a receivership were noted, viz.: There was nothing to indicate inadequacy of the mortgage security there was no allegation of the insolvency of the estate of the deceased mortgagor. On the last submission in the court below numerous affidavits were offered in evidence on the question whether the mortgaged property was then adequate security for the debt. Apart from the matter of usury in the payments heretofore made on the mortgage debt, and which on this submission has been pretermitted for the reason that there is no satisfactory proof on that subject, it appears to the court here that appellee has ample security for her debt. Large payments are shown, but they have in much the larger part been applied on the interest due upon the debt. The debt now, apart from any question of usury, is something less than $30,000. The land was accepted on the date of the mortgage as security for a debt of $34,000. The only evidence we have on the subject of its present condition is that it has been well cared for since the date of the mortgage. Affidavits offered by appellees go to show that in the opinion of affiants the land is now worth $28,000 to $30,000, whereas the affidavits of landowners in the neighborhood of the land in question go to show that it is worth $50,000 or more. Emphasis is laid upon the fact that this land was returned for taxation at $20,000. Holding the owners to strictest accountability in the matter of tax returns, in which the statute authorizes a valuation of 60 per cent., this would indicate a value of $4,000 or $5,000 in...