Patterson v. Lovelady

• Citation: 172 So. 646,233 Ala. 554
• Decision Date: 14 January 1937
• Docket Number: 6 Div. 15
• Parties: PATTERSON v. LOVELADY.
• Court: Supreme Court of Alabama

172 So. 646

233 Ala. 554

PATTERSON v. LOVELADY.

6 Div. 15

Supreme Court of Alabama

January 14, 1937

Rehearing Denied March 4, 1937

Appeal from Circuit Court, Cullman County; A.A. Griffith, Judge.

Suit in equity by J.H. Patterson against Lydia Lovelady, and cross-bill by respondent. From a decree granting relief under the cross-bill, complainant (cross-respondent) appeals.

Affirmed.

Wm. C Rayburn, of Guntersville, and James & Stewart, of Cullman for appellant.

St John & St. John, of Cullman, for appellee.

KNIGHT Justice.

The bill in this cause was filed by appellant, J.H. Patterson, against the appellee for statement of accounts between appellant and appellee, and for cancellation of a certain mortgage executed by the appellant to appellee.

The court overruled demurrers to the bill, and the question of its sufficiency does not arise on this appeal.

The respondent filed answer and cross-bill, making the complainant, and his wife, Dora Patterson, parties defendant thereto. There was no demurrer to this cross-bill for misjoinder of parties defendant. Maryland Casualty Co. v. Holmes, 230 Ala. 332, 160 So. 768.

By her cross-bill the appellee (cross-complainant) brought forward the mortgage executed to her by the said J.H. Patterson and wife, and under proper averments sought foreclosure of the same.

It is to be here noted that, in her cross-bill, the cross-complainant alleged that the note secured by the mortgage provided for the payment of all costs "and a reasonable attorney's fee for the collection of the same," and that the mortgage provided for the payment of "all costs, expenses and attorney's fees which might be legally incurred in the collection of said debt or for foreclosing said mortgage, and the respondent averred that two hundred and fifty dollars would be a reasonable attorney's fee for the collection of said notes and for foreclosing said mortgage."

The mortgage conferred upon the mortgagee the power to sell the property in foreclosure of the mortgage in the event of default in the payment of the secured debt, but no reference is made to attorney's fee for foreclosure in a court of equity.

In the record there is much testimony, pro and con, bearing upon the amount of the indebtedness, and the payments made by the mortgagor.

Upon submission, the court ordered a reference to the register to state the account between the parties and to ascertain and report "the amount due, if any, upon the mortgage given by the complainant, J.H. Patterson and his wife, Dora Patterson, to the respondent and cross-complainant, Mrs. Lydia Lovelady," and "to ascertain and report what would be a reasonable solicitor's fee for the solicitors of respondent and cross-complainant for the foreclosure of said mortgage, in the event it is foreclosed."

Pursuant to this order of reference, it appears that the register, after due notice to the parties, held the reference, and reported to the court that, after allowing the complainant all credits to which he was entitled, there remained due and owing on the mortgage indebtedness, as of the date of the report, the sum of $2,013.62, and that the sum of $150 would be a reasonable allowance to Mrs. Lovelady for her solicitors in the cause. The register further found that the mortgage indebtedness was not infected with usury, as claimed by the complainant, the said J.H. Patterson.

The report is voluminous, and seems to deal fully and fairly with each and every claim made by the respective parties.

On the reference each party noted all the testimony taken in the cause and noted on the original submission, and additional testimony was given ore tenus before the register.

The complainant filed numerous exceptions to the register's report, some going to the disallowance of claimed credits, some to the "allowance" of $150 for the solicitors of Mrs. Lovelady, while other exceptions were directed to that part of the report which found that no usury had been charged in the mortgage.

The court, on submission, overruled complainant's exceptions and confirmed the report in all respects.

The court, by its decree, fixed the amount of the mortgage debt at $2,013.62, and allowed the cross-complainant the sum of $150 for her solicitors, making the total amount of the indebtedness of said mortgage, secured by said mortgage, the sum of $2,163.62. This was in accordance with the report of the register.

The court allowed the complainant thirty days within which to pay the indebtedness, and, in default of payment, ordered the register to sell the property conveyed by the mortgage to satisfy said indebtedness.

We have carefully read and considered the testimony in this cause, and find no reason to disturb the report of the register, or the decree of the court thereon.

The report of the register is accorded the weight of the verdict of a jury, and will not be disturbed unless the court on a review of the evidence is convinced that it is palpably and plainly wrong. Bailes v. Bailes, 216 Ala. 569, 114 So. 185; Ex parte Jackson, 212 Ala. 496, 103 So. 558; Adalex Construction Co. v. Atkins et al., 214 Ala. 53, 106 So. 338; Bay Minette Land Co. v. Stapleton et al., 224 Ala. 175, 139 So. 342; Bidwell v. Johnson, 195 Ala. 547, 70 So. 685.

The register reported that there was no usury charged by the mortgagee in the indebtedness secured by the mortgage.

When it is recalled that the usury laws are penal, and depend upon the intent of the parties, "at least of the creditor," we cannot affirm that the register reached an erroneous conclusion as respects the asserted claim that the mortgage debt was infected with usury. Lessly v. Beaird, 232 Ala. 432, 168 So. 143.

It is insisted that the court erred in allowing a solicitor's fee to cross-complainant, in view of the fact that the...