Moore v. Berryman

• Decision Date: 14 April 1932
• Docket Number: 8 Div. 319.
• Citation: 224 Ala. 555,141 So. 192
• Parties: MOORE v. BERRYMAN ET AL.
• Court: Alabama Supreme Court

141 So. 192

224 Ala. 555

MOORE v. BERRYMAN ET AL.

8 Div. 319.

Supreme Court of Alabama

April 14, 1932

Appeal from Circuit Court, Lawrence County; Jas. E. Horton, Judge.

Bill in equity by J. F. Moore against W. J. Berryman and the Bank of Moulton. From a decree sustaining a demurrer to the bill complainant appeals.

Reversed and remanded.

O Kyle, of Decatur, for appellant.

W. L Chenault, of Russellville, for appellees.

THOMAS J.

The appeal is from a decree sustaining demurrers to the bill as originally filed and as amended.

The bill was to restrain the foreclosure of a mortgage, for the redemption of said mortgage on real property before foreclosure, for the elimination of usury alleged to be carried therein on accounting, for the due and proper marshaling of assets between several securities and parties alleged to be interested therein, and the appropriation of payments alleged to have been made on the mortgages.

The allegations are sufficient as a bill for injunction and redemption on the averred facts of complication of accounts, demand for more than was due on the mortgage sought to be foreclosed, the charge of usury, and that the mortgagee had acquired another mortgage on his personal property with which to oppress and harass complainant. The charge of failure of a due application of payments made on the real estate mortgage avers a necessity for restraining actions at law as to the properties with which he operated his farm, and the collection of amounts not due on the mortgage, and complainant submits to the jurisdiction of the court, offers to do equity by payment of whatever sum that may be found legally due on the mortgage and decreed by the court.

The case made by the pleading before us is different from that in Security Loan Association v. Lake, 69 Ala. 456, and is within the influence of the majority opinion in Carroll v. Henderson, 191 Ala. 249, 68 So. 1; Lampkin v. Stout, 199 Ala. 101, 74 So. 239. In Castleman v. Knight, 215 Ala. 429, 110 So. 911, 912, the just observation is:

"The equity of the bill may be rested upon the well-recognized jurisdiction of a court of equity to prevent a perversion of the power of sale in a mortgage from its legitimate purpose to that of oppression of the debtor and to purposes foreign to that for which it was intended. The following quotation containing the principle here controlling has found frequent repetition in our subsequent decisions:

"'The legitimate purpose, for which the power to sell in this defendant's mortgage deed was given, was to secure him repayment of his mortgage money. If he uses the power to sell, which he gets for that purpose, for another purpose, from any ill motive, to effect means and purposes of his own, or to serve the purposes of other individuals, the court considers that to be what it calls a fraud in the exercise of the power, because it is using the power for a purpose foreign to the legitimate purposes for which it was intended."'

So, also, in Boyd v. Dent, 216 Ala. 171 (6), 113 So. 11, it was decided "In a suit to redeem from the mortgage, where the mortgagors alleged that the mortgage debt contained usurious interest and offered to pay any balance found to be due, they were entitled to have the amount due ascertained, and an opportunity to redeem by payment of the debt found due and costs, though they failed to show usury."

And the question here pertinent was concluded in Ezzell v. First National Bank of Russellville, 218 Ala. 462, 463, 119 So. 2, 3, as follows: "The rule of our...