Pattillo v. Tucker
| Decision Date | 24 March 1927 |
| Docket Number | 8 Div. 923 |
| Citation | 113 So. 1,216 Ala. 572 |
| Parties | PATTILLO v. TUCKER. |
| Court | Alabama Supreme Court |
Rehearing Denied May 26, 1927
Further Rehearings Denied June 18, 1927, Oct. 20, 1927
Appeal from Circuit Court, Morgan County; O. Kyle, Judge.
Bill in equity by W.E. Tucker against M. Pattillo and another, and cross-bill by Pattillo. From a decree for complainant respondent (cross-complainant) appeals. Corrected and affirmed.
Where bill to redeem from mortgage was equitable bill, mortgagor need not tender amount and follow it into court as condition precedent.
On February 9, 1924, complainant Tucker filed his bill against Minnie Hartselle and M. Pattillo, alleging that on April 15 1914, he executed to Hartselle a certain mortgage on lands to secure an indebtedness of $855, maturing January 1, 1915, and bearing interest from date; that, through confederation or combination of defendants, Hartselle during "the present month,' transferred and assigned said mortgage to Pattillo, who unjustly claims and demands the sum of $1,661 as due thereon whereas, complainant states sums totaling $229.75 were paid on the mortgage during 1919 and 1920; that "the said mortgage was usurious in that defendants claim that it was agreed and understood that the complainant should pay, and the defendant would receive, over 12 per cent. per annum interest, which this complainant denies; the defendants further claim compound interest on said mortgage and amount due thereon"; that prior to filing the bill complainant made tender to Pattillo of the full amount of mortgage debt and interest, which was, and is still, refused. Complainant offers to do equity, to pay any and all sums found to be due and prays to be allowed to redeem upon payment of the amount ascertained.
On June 7, 1924, complainant filed an amendment to the bill so as to describe correctly the land involved; on the previous day (June 6) he filed lis pendens notice in the office of the judge of probate.
Pattillo, on June 9, 1924, filed answer and cross-bill, and thereafter filed amendments thereto, alleging that on February 4, 1924, complainant came to him and stated that the mortgage given by him to Hartselle was threatened to be foreclosed; that at the time complainant owed him (Pattillo) $24.08 on chattel mortgage past due, and owed the First Mortgage Company a note for $138.40, including interest and attorney's fee, on which note Pattillo was accommodation indorser and which was in the hands of an attorney for collection; that on said occasion complainant sought Pattillo's aid to secure a loan to take up the Hartselle mortgage and the note of the mortgage company, offering to secure Pattillo for the amount necessary and to include the small chattel mortgage debt due Pattillo; that Pattillo agreed to examine the Hartselle mortgage and, if satisfactory with the mortgagee, to take up the mortgage, take a transfer of it, and take a second mortgage to secure the several debts; that after this conversation Pattillo examined the Hartselle mortgage and found attached thereto the following statement:
It is further alleged that complainant came to Pattillo on February 6, 1924, and Pattillo reported to him that he had found the foregoing statement and the balance then due with interest was $1,661.05; that complainant acknowledged the correctness of the amount as shown by the statement and that he had signed the same, and requested Pattillo to pay the mortgagee, Hartselle, the said amount of $1,661.05, to take a transfer of said mortgage and hold the same as security for the amount so paid, and agreed to give Pattillo a second mortgage on the land to secure the mortgage on the land to secure the mortgage company note and the chattel mortgage debt due Pattillo; that, relying upon the statement and promise of complainant, Pattillo paid to Hartselle said $1,661.05 and took a transfer of the mortgage to him in these words:
It is further alleged that no part of said mortgage debt has been paid and that complainant has not tendered said amount or offered to pay same; that complainant did offer to pay some amount in settlement of said mortgage debt, which Pattillo declined, but agreeing to accept the said amount of $1,661.05; that complainant declined to pay said sum and thereafter filed the bill in this cause.
It is further alleged that Pattillo, in purchasing the mortgage, did not calculate the amount of interest, had no knowledge that usurious interest had been charged or that the mortgagor had agreed to pay usurious interest, and relied solely upon the statement of complainant that the amount due was correctly shown in the statement attached to the mortgage, figuring interest on the amount due according to said statement, and that he had no conversation with Hartselle or her agent in reference to the matter other than shown.
It is further alleged in the cross-bill that the land described in the original bill was entirely different from the land described in the mortgage; that the error of description was called to the attention of complainant's solicitor; that having waited for a long time for complainant to amend his bill so as to correctly describe the land, and complainant failing to do so, on May 29, 1924, he, as transferee of the mortgage, proceeded to sell the land by foreclosure proceedings, and did on June 7, 1924, sell same, J.B. Leeman becoming the purchaser; that thereafter Leeman conveyed the land back to Pattillo.
It is prayed that the foreclosure of said mortgage be confirmed and title to the land decreed in Pattillo; that complainant be required to elect whether or not he will redeem said land from said foreclosure.
A decree for foreclosure of the Hartselle mortgage, with declaration of Pattillo's lien, and general relief is also sought.
Complainant in answer to the amended cross-bill avers that the mortgage itself showed that the amount indorsed thereon was swollen and beyond reason; that said amount was indorsed thereon by the fraud of James Hartselle, acting as agent for the mortgagee; that complainant had made arrangements with one Wood to take over the mortgage for him; that Pattillo tried to get Wood to buy the mortgage for the benefit of Pattillo; that Wood informed Pattillo before said mortgage was transferred that the same was usurious and that Hartselle was claiming, in addition to usury, compound interest; that Pattillo "rushed in" to get hold of said mortgage in order to make complainant secure another and different debt claim by Pattillo, and then proceeded to foreclose, using Leeman as a go-between.
The trial court...
To continue reading
Request your trial
-
Western Grain Co. Cases, 6 Div. 374
...mistake of law is not an adequate ground for relief in equity.' On the proposition of estoppel we note the following from Pattillo v. Tucker, 216 Ala. 572, 113 So. 1, 3: '* * * But it must also be borne in mind that a party who invokes an estoppel must have in good faith been ignorant of th......
-
Mead v. Eagerton
...or set aside by the court, if complainant is awarded relief. See, McDermott v. Halliburton, 219 Ala. 659, 123 So. 207; Patillo v. Tucker, 216 Ala. 572, 113 So. 1; Brown v. Bell, 206 Ala. 182, 89 So. 659; Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. In the case of Alabama P......
-
Union Oil Co. of Cal. v. Crane
...of the Law of Agency, Sections 265-267; Patterson v. Neal, 135 Ala. 477, 33 So. 39. * * *' At 64, 1 So.2d at 31. In Pattillo v. Tucker, 216 Ala. 572, 575, 113 So. 1, 3, this Court 'But it must also be borne in mind that a party who invokes an estoppel must have in good faith been ignorant o......
-
Federal Land Bank of New Orleans v. Southmont Mfg. Co.
... ... Ezell v. Holland, 210 Ala. 694, 99 So. 78), but one ... of estoppel by conduct (Ivey v. Hood, supra; Pattillo v ... Tucker, 216 Ala. 572, 113 So. 1) of a mortgagee as to ... enforcing his debt from the security by the land or timber ... standing thereon ... ...