Presnall v. D.R. Burgess & Co.

• Decision Date: 23 April 1913
• Citation: 181 Ala. 263,61 So. 804
• Parties: PRESNALL v. D.R. BURGESS & CO.
• Court: Alabama Supreme Court

61 So. 804

181 Ala. 263

PRESNALL v. D.R. BURGESS & CO.

Supreme Court of Alabama

April 23, 1913

Appeal from Chancery Court, Clarke County; Thomas H. Smith Chancellor.

Bill by C.W. Presnall against D.R. Burgess & Co. and individuals composing the firm for an injunction restraining foreclosure proceedings and for an accounting. Decree for respondents and complainant appeals. Affirmed.

William D. Dunn, of Grove Hill, for appellant.

Gregory L. & H.T. Smith and R.H. & R.M. Smith, all of Mobile, for appellees.

McCLELLAN J.

Prior to February 19, 1906, C.W. Presnall (complainant) had executed to E.H. Bixler two mortgages--one to secure a note for $700 and one for $800. Real and personal property was covered by them; the real property being that here involved. On that date by agreement with Presnall, upon the payment of $1,500 to Bixler, Burgess & Co. had those mortgages transferred to them. On that date (though acknowledged the next day) Presnall executed a mortgage for $1,500 to Burgess & Co. In this instrument it is recited in referring to the note due November 1, 1906, it was given to secure: "For the sum of $1,500.00, advanced and delivered to me in supplies of provisions, cash, material, etc., to enable me to make a crop of cotton," etc. Further on it is also recited therein: " 'The fee-simple title to the said described property' and the said paragraph should read as follows: 'The fee-simple title to said described property is vested absolutely in me and I hereby warrant that there is no prior mortgage, nor prior lien, nor any incumbrance of any kind or description, upon said property, except to E.H Bixler, which I expect to have transferred to the said D.R. Burgess & Co. Said advances are made to me by said D.R. Burgess & Co., upon the faith and credit of this warranty." It is also provided in this mortgage to Burgess & Co. that it should secure the payment of advances of supplies and money made "during the present year" (1906) in excess of the amount of the $1,500 note. It is also provided in that mortgage that the mortgagee might purchase at the foreclosure sale therein above described. At the time these transactions took place, as well as when the Bixler mortgages were executed, Presnall was unmarried. During the winter of 1904-05 Presnall became indebted to Burgess & Co. in the sum of $264.81. This indebtedness existed when the mentioned mortgages were transferred, and when the $1,500 mortgage to the company was executed. On March 26, 1907, Presnall was married.

In the process of foreclosing the two Bixler mortgages, of which they were the transferees, and the $1,500 mortgage executed to them by Presnall, Burgess & Co. gave notice that sales for that purpose would be had on March 22, 1909. On March 12, 1909, the original bill in this cause was filed by Presnall against the firm of Burgess & Co. It exhibited therewith in copy the three mortgages mentioned and the notice of their foreclosure under the power of sale in each provided. The more material averments are these: That the transfer of the Bixler mortgages as described was effected by agreement of the complainant and respondents and Bixler; that respondents honored complainant's draft for the $1,500, consideration of the transfer; that complainant executed to respondents the mortgage of February 19, 1906, which was intended as additional security for the sum furnished by the defendants to effect the transfer of the Bixler mortgages; that all three of the mortgages were for the same debt; that the only other sum or value advanced or received by complainant from respondents during the year 1906 was $25 (which, as we have indicated before, was secured by the clear provision of the mortgage made to respondents on February 19, 1906); that the respondents claim a large sum due them upon the debt or debts secured by these mortgages, but that this claim is excessive, and is largely not justly due; that respondents are endeavoring to enforce the payment of debts not embraced in the debt for which the mortgages were given as security; that the mortgage debt or debts was or were not to bear interest until maturity, notwithstanding which interest was computed and claimed upon the note of February 19, 1906, as appears from a statement of account presented to complainant by the firm on February 14, 1907; that the property described in the mortgages was many times as valuable as the true indebtedness; and that complainant does not know the true amount due upon the mortgages, but that it is greatly less than the amount claimed by respondents. The bill also contains the following: "And your orator further showeth unto your honor that he is ready and willing to pay whatever amount may be found due, as may be directed by this honorable court, and he therefore submits himself to the jurisdiction of this honorable court."

The special prayer is for an accounting to ascertain the indebtedness between the parties, and that upon payment by complainant the mortgages be surrendered and canceled. It was also prayed that a temporary injunction issue restraining the foreclosure of the mortgages, and upon final hearing that the injunction be made permanent. There is a prayer for general relief. The injunction prayed was not issued; the bond exacted not having been made by complainant. At the foreclosure sale the property was sold for $1,973.72--the amount of the indebtedness, including cost, attorney's fee, and interest claimed by respondents. The respondents answered, and constituted the sixth paragraph thereof the substance of their cross-bill. The following letter, signed by complainant on February 14, 1908, is set forth in the paragraph: "I am due you $1,750.28 with interest from Jan. 21, 1908, on my mortgage dated Feby. 19, 1906, recorded in Clarke county 6th day of March, 1906. Now, in consideration of the fact that you are willing to extend this mortgage for me with interest to October 1, 1908, I hereby agree and promise to take up said mortgage in full on 1st of October, 1908."

It is alleged that on the occasion of the signing of the letter the respondents rendered complainant a statement of his account to that date, to the correctness of which he agreed, wherein the net indebtedness stated in the letter was shown as the result from itemized debits and credits. It is also averred in this paragraph: "Under the facts aforesaid, the defendant is advised and claims that the balance of the proceeds of the sale of said mortgage property over...