Perdue v. Brooks

• Citation: 11 So. 282,95 Ala. 611
• Parties: PERDUE v. BROOKS ET AL.
• Decision Date: 20 May 1892
• Court: Supreme Court of Alabama

11 So. 282

95 Ala. 611

PERDUE v. BROOKS ET AL.

Supreme Court of Alabama

May 20, 1892

Appeal from chancery court, Lowndes county; JOHN A. FOSTER Chancellor.

Suit by Thomas Perdue against Brooks Bros. to have a deed made by complainant to defendants, absolute in form, declared a mortgage, and a cross suit for foreclosure of a mortgage by complainant to a third person, and taken up by defendants. Judgment granting relief on original and cross bill, and a reference to the register ordered. From a decree granting the defendant's motion for a personal decree against complainant for the amount of certain indebtedness outside the mortgage debt found by the register to be due on account complainant appeals. Reversed.

The original bill in this case was filed by the appellant, Thomas Perdue, against the appellees, Brooks Bros., and sought to have a deed, made by the complainant to defendants, absolute in form, declared a mortgage. The bill sets out at length the circumstances under which the deed was executed, and avers that, upon the defendants advancing to complainant money enough to pay a mortgage due one Carr from the complainant he did make to the defendants the deed in question. The bill further avers that the defendants at that time entered into a written agreement to allow the complainant to redeem the property upon the payment of the money advanced to them to said Carr. It was also averred in the bill that the defendants took up for the complainant a mortgage which he had made to one Crenshaw to secure advances made to him during the year 1883. The defendants filed their answer, and denied the material allegations of the bill, alleging that the deed was never intended to be a mortgage, and that, on the payment to Crenshaw of the amount due upon his mortgage the said mortgage was transferred by Crenshaw to the defendants. They prayed that their answer, together with the allegations added to it, might be taken as a cross bill, and they prayed that the Crenshaw mortgage might be foreclosed. On the submission of the cause the chancellor decreed that both the complainants in the original bill and in the cross bill were entitled to relief, and ordered a reference to the register to ascertain the amounts due on the mortgage debts. Upon the coming in of the register's report, showing the amount due on each of the mortgages, the chancellor decreed that the complainant should be entitled to redeem upon the payment of the amount shown by the register's report to be due on the mortgages, and, if the amounts were not so paid, then the property was to be sold. In making his report the...