Moseley v. Ritter

• Decision Date: 14 January 1932
• Docket Number: 6 Div. 924.
• Parties: MOSELEY ET AL. v. RITTER ET AL.
• Court: Alabama Supreme Court

139 So. 94

224 Ala. 58

MOSELEY ET AL. v. RITTER ET AL.

6 Div. 924.

Supreme Court of Alabama

January 14, 1932

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill in equity by N.W. E. Moseley, individually and as executrix of the estate of J. D. Moseley, deceased, and Ida Belle Culpepper Green, against C. D. Ritter and C. D. Ritter and W J. Wynn, doing business under the firm name of Ritter, Wynn &amp Carmichael. From a decree sustaining a demurrer to the bill complainants appeal.

Affirmed.

Bill of mortgagor and mortgagee, against assignees of mortgage for collection and purchaser at foreclosure sale, to set aside foreclosure and to avoid attorneys' fee, held not to warrant relief.

In substance, the bill avers that, during the lifetime of J. D Moseley, he and his wife (the complainant Moseley) executed a note and mortgage securing the same to Ida Belle Culpepper Green, one of the complainants, conveying certain real estate in Jefferson county, Ala.; that, after the mortgage was executed, Ida Belle Culpepper Green brought a suit for divorce against her husband, William W. Green, in the circuit court of Jefferson county, Ala.; that William W. Green appeared in said proceedings and contended that he was the owner of the mortgage indebtedness secured by the said notes and mortgage.

It is averred that in said proceedings the said Ida Belle Culpepper Green was represented by Ritter, Wynn & Carmichael, who then stood to her in the position of attorneys and client, and that, while this condition existed, she sent the note and mortgage forward assigned to Ritter, Wynn & Carmichael for the purpose of collection; that, though her signature was attached to the assignment, nevertheless no money was received by her for said assignment, then, before, or since the said assignment was drawn and signed, and that Ida Belle Culpepper Green is still the beneficial owner of the said notes and mortgage, that the complainant Moseley paid into the court the amount then necessary or required to satisfy and discharge the said mortgage indebtedness, all of which was done before the law date of said mortgage; that shortly thereafter the respondents, under the color of said assignment, undertook to foreclose said mortgage under the power contained therein, and that at a purported sale had thereunder the respondent C. D. Ritter claims to have become the purchaser of the lands, and a deed was executed to him by Ritter, Wynn & Carmichael, reciting that the purchase money had been paid.

It is shown that the purported foreclosure took place on the 2d day of May 1928, and that, although the said foreclosure deed recited that C. D. Ritter paid the sum of $860 in cash, no part of said money has been sent to the complainant, Ida Belle Culpepper Green, and that now C. D. Ritter, as the alleged owner of said lands, is claiming of the complainant, Moseley, individually and as administratrix, interest on said purchase price of 10 per cent. per annum, making a total claim of $1,010, although the complainant shows that, at the time of the attempted foreclosure, the mortgage indebtedness was $749, the amount of which the complainants one to the other are willing to pay and accept in full discharge of said indebtedness; that, although the complainants are in accordance as to the amount to be paid in settlement of said mortgage indebtedness, nevertheless, due to the pretended claim of said C. D. Ritter and W. J. Wynn, they are unable without the aid of the court to make a complete settlement or to adjust the controversy because of said colorable claim, which is a cloud upon the title and the rights of the complainants therein.

The bill then shows that Ida Belle Culpepper Green has executed a full power of attorney to W. P. McCrossin in the city of Birmingham to collect any and all moneys due under the said mortgage. The bill charges and states the fact to be true that W. P. McCrossin has made both verbal and written demand upon the respondents to rescind their actions in the premises, to execute such needful papers to the end that their pretended claim may be put to an end, wiped out, annulled, or satisfied, all of which the respondents had declined to do.

It is then shown by the bill that, prior to the attempted foreclosure, namely, October 10, 1927, the complainant Moseley had paid to the register of the circuit court, and in the cause between Ida Belle Culpepper Green and William W. Green, $24.50, and on March 19, 1928, an additional sum of $700 was so paid, this being all the money then due under the said mortgage, together with interest thereon; that the respondents, though fully advised that said moneys were held by the register of the Court for the rightful claimant, declined to accept said money, and contended thereafter that, because under a strict interpleader permission to pay the money in court had not been granted, they, as the owners of the mortgage and notes or the owner of the lands under foreclosure, were entitled to an attorney's fee to be taxed for the pretended foreclosure and costs thereon, and complainants are unable to secure settlement, adjustment, or discharge of said indebtedness.

The complainant Ida Belle Culpepper Green shows that the notes and mortgage were sent forward by her attorney in Detroit, state of Michigan, to the said respondents, and that she is not and has never been in possession of the correspondence between her said attorney in Detroit and her attorneys respondents herein, and that it was desirable, necessary, and proper to have discovery of certain matters and things of which she sought discovery, and to this end interrogatories were incorporated in the bill asking for all correspondence, seeking to ascertain also what money or things of value had been received on the mortgage indebtedness either as purchaser or attorney at the foreclosure, to attach receipts and give date of payment. If the respondents as her attorneys had received the sum of $860 in cash at the alleged foreclosure sale, if so, what distribution, if any, had been made of said sum, and sought all correspondence in reference thereto.

The complainants in the amendment to the bill offered to do equity and abide by the decrees of the circuit court.

In the prayer of the...