Richardson v. Curlee

• Decision Date: 30 November 1934
• Docket Number: 5 Div. 191.
• Citation: 229 Ala. 505,158 So. 189
• Parties: RICHARDSON v. CURLEE et al.
• Court: Alabama Supreme Court

158 So. 189

229 Ala. 505

RICHARDSON v. CURLEE et al.

5 Div. 191.

Supreme Court of Alabama

November 30, 1934

Rehearing Denied Jan. 3, 1935.

Appeal from Circuit Court, Elmore County; F. Loyd Tate, Judge.

Bill to declare a deed a mortgage and for redemption by Thomas J Richardson against A. D. Curlee, as administrator of the estate of W. B. Curlee, deceased, and Mary Whitaker. From a decree sustaining a demurrer to the bill and dismissing it complainant appeals.

Reversed rendered, and remanded.

C. E O. Timmerman, of Montgomery, for appellant.

Holley & Milner, of Wetumpka, for appellees.

KNIGHT Justice.

It is made to appear from the averments of the bill, as amended, that the appellant, complainant in the court below, owned certain described lands in Elmore county, and executed two mortgages thereon, one to the First National Bank of Wetumpka, Ala., to secure a loan of $1,080, and the other to W. E. Lacy, to secure an indebtedness of $4,000. After the law day of these mortgages, but while each constituted a valid, legal, and subsisting lien upon the property, they were transferred and assigned to W. B. Curlee, now deceased, and of whose estate the appellee A. D. Curlee is administrator.

It is also averred in the bill, as amended, that, after the administrator took over the administration of the estate of said W. B. Curlee, and after "various payments had been made" by the mortgagor on said mortgages, the mortgagor executed and delivered to the said A. D. Curlee, as the administrator of the estate of said W. B. Curlee, deceased, a certain instrument in form of a deed, "to prevent him from foreclosing said mortgages." A copy of this instrument is made an exhibit to the bill.

The averments of the bill, as amended, with reference to the execution and delivery of said deed, are: "Fourth: Orator showeth to the court that on or about the 28th day of September, 1931, after various payments had been made by orator on the above stated mortgages during the time they had been outstanding, A. D. Curlee as administrator of the estate of W. B. Curlee, deceased, required and fraudulently prevailed on orator, who was a poor man, without means to pay off said mortgages at the time, and in distress, to make to him a conveyance to practically all the land embraced in the foregoing mortgages to prevent him from foreclosing said mortgages. Ex. A and B in said conveyances orator reserved both his equity and his personal right of redemption to said property, a copy of which is hereto attached as Exhibit C, with leave of reference; and orator alleges that said conveyance while in some respects a deed, was given by him to secure what might still be due on, and was a continuation of said mortgages Exhibits A and B and was in deed and in fact intended by each of the parties to said contract to operate as a mortgage." (Italics supplied.)

The bill, to say the least of it, in its statements, as to the equity or equities upon which complainant relies for relief, is not as clear as good pleading would seem to suggest or require.

The bill as amended nowhere avers that the property conveyed by the deed exceeded in value the indebtedness secured by the two mortgages, and it does not aver that it conveys all the property which was conveyed by the mortgages. In this respect the averment is that the instrument conveyed " practically all the land" embraced in the mortgages. In one of the mortgages certain personal property was also included. This personal property was not included in the foreclosure conveyance.

The averment that the complainant "was required and fraudulently prevailed on" to make the conveyance is not sustained by the averment of any facts which, in the least degree, would give color or support to the charge that a fraud was practiced upon the complainant, to induce the execution of the conveyance. Fraud is a conclusion of law from facts stated and proved. When it is pleaded, either at law or in equity, the facts out of which it is supposed to arise must be stated; a mere general averment, without such facts, will not suffice. National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474; Flewellen v. Crane, 58 Ala. 627, 629; Pickett v. Pipkin, 64 Ala. 520, 523; Quarles v. Campbell, 72 Ala. 64; Meadows v. Meadows, 73 Ala. 356, 358; Ph nix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31.

In the case of Oakley v. Shelley, 129 Ala. 467, 29 So. 385, 386, it was observed: "The right of a mortgagor to redeem his property before foreclosure is jealously guarded in equity; so that agreements for its extinguishment, as by a sale from the mortgagor to the mortgagee, will be closely scrutinized by the court; and, if found to have been induced by an unfair or oppressive use of the advantage which is presumed to be held by the mortgagee, such an agreement will be set aside, and redemption allowed."

In the case of Stoutz v. Rouse, 84 Ala. 309, 4 So. 170, 171, it was held:

"A court of chancery will set aside any agreement entered into by a mortgagor, contemporaneously with the execution of the mortgage, by which he waives, unduly fetters, or agrees not to exercise his equity of redemption in event of default in the payment of the mortgage debt; and, as observed by Lord Chancellor Northington in Vernon v. Bethell, 2 Eden, 110: 'There is great reason and justice in this rule, for necessitous men are not, truly speaking, free men, but, to answer a present exigency, will submit to any terms that the crafty may impose upon them.' The right of redemption is the creature of law, and not of contract. The parties are not, therefore, permitted by special agreement to disannex from the mortgage, at the time of its execution, that which the law has declared shall be annexed to it, to prevent the undue oppression of debtors by creditors. And a like rule has been applied, for similar reasons, to the statutory right of redemption. Parmer v. Parmer, 74 Ala. 285.

"But the reason of this rule, however, does not apply to any fair and bona fide purchase of the right of redemption which is entered into subsequently to the execution of the mortgage. Although courts of equity will scan such a purchase with watchfulness, it will still be upheld, unless procured by fraud, actual or constructive, including any unconscientious advantage or undue influence or on a consideration which is grossly inadequate. Hitchcock v. U.S. Bank, 7 Ala. 386, 443; McKinstry v. Conly, 12 Ala. 678."

These equity principles received the further approval of this court in our more recent case...