Stickney v. Moore

• Decision Date: 28 November 1895
• Citation: 19 So. 76,108 Ala. 590
• Parties: STICKNEY v. MOORE ET AL. [1]
• Court: Alabama Supreme Court

19 So. 76

108 Ala. 590

STICKNEY v. MOORE ET AL. ^[1]

Supreme Court of Alabama

November 28, 1895

Appeal from chancery court, Hale county; W. H. Tayloe, Chancellor.

Action by Mary V. Childress against Thomas G. Moore, James P. Moore and Mat Moore. R. H. Stickney filed a cross bill, and from the decree appeals. Affirmed.

This case was begun to foreclose a certain mortgage executed to secure a balance due her for her interest in a portion of the lands, which they had also mortgaged to the Scottish American Mortgage Company, Limited, to which latter mortgage the complainant had accorded priority by her written agreement. The appellees were made parties defendants. In the course of time, cross bills were filed, by which other mortgage creditors undertook to assail prior incumbrances on the ground of usury. Besides the indebtedness of the Scottish American Mortgage Company, they assail that to Stickney, and assert that the present, or existing mortgage to him is to be reduced by usurious charges in prior dealings by them with him. The facts on this subject are, that the Moores had for several years obtained advances in money and supplies from Stickney for their own and family support and for operating their planting interests, commencing with the year 1882, in a small amount, and continuing through the years 1883, 1884 and 1885, in much larger amounts for each of those years. On the 17th day of April, 1883, the Moores executed to Stickney their note for $5,000 due November 1, 1883, and a mortgage on certain personal property and their crops, to secure said note and any further advances. The amount as stated in the mortgage, was to cover contemplated advances and existing indebtedness. Stickney advanced to them in that year to an amount, including a balance of the previous year, exceeding the nominal sum of the note, or in all, $5,908.34. Principally with the proceeds of the cotton embraced in the mortgage, the Moores paid him on those advances and indebtedness $3,284.56, which left a balance due $2,624.75. The testimony is undisputed, that he demanded payment of this balance, or the sale of the personal property conveyed by the mortgage for that year, although the Moores insist that this was a sham and part of the scheme to tax them with greater interest. It is certain Stickney employed counsel to collect the balance, at the close of the crop season of 1883; and on the 18th of March, 1884, the Moores entered into a written instrument, by which they stipulated that, in order to save the costs and expense of a foreclosure of the mortgage, which Stickney held, they agreed to sell and turn over to him the personal property described in the mortgage, at the price and for the sum of $2,625. The proposition came from them, and he was careful to obtain the consent of a subsequent mortgagee of the property, and that it should be taken at the sum agreed on. Yielding to their solicitation, to sell to them the stock as he would to any other purchaser, he credited the agreed price thereof on their indebtedness, thus closing up the transaction of the previous year with them, and satisfied the mortgage he then had. He, not desiring to keep the horses and mules, sold them to the Moores at the price of $2,845 payable on the 15th of November following, which, he testifies without contradiction, was a fair credit price for that amount in value of property for that length of time. On the same day, March 18, 1884, he took from the Moores a note for $4,345, payable on the 15th of the succeeding November which, he testifies, embraced the credit price of the stock sold and $1,500 to be advanced them during that year, with which to make a crop, and a mortgage to secure the said indebtedness on the stock, the crops to be raised on their lands, and on the lands involved in this suit, without any provisions for further advances. he testifies that during that year, and before the maturity of the debt, he made other advances in money and supplies, so that the whole amount of that year's transactions amounted to $4,482.87, which was in excess of the amount covered by the mortgage of March 18 1884, for that year, and for which excess, he states in answer to the fourth cross interrogatory of Evans' administrator, he received as security some rent notes, which were paid and credited to them. Other payments were made from the proceeds of cotton, embraced in the mortgage, and the whole amount thereof, $2,258.68 credited on the indebtedness, leaving a balance due of $3,034. For the balance due on this mortgage, after some deductions on account of subsequent payments, the appellant, Stickney, claims that his demand should be allowed. He had no new mortgage after this from all the Moores, James Pickens, Thomas G. and Mat Moore, nor any on the lands involved in this suit; but did have two other mortgages from James P. Moore, one dated February 28, 1885, for $250, payable October 15, 1885, and the other dated the 5th day of August, 1885, for $150, payable on the 1st day of November, 1885, the first embracing the crops on the lands known as the "John R. Moore Home Place," only, and the second on certain personal property and the crops raised that year on the lands owned by J. P. Moore and brothers, in Hale county; and also one mortgage from Mat Moore, dated March 24, 1885, for $350, payable on the 15th day of October, 1885, covering the crops raised by the mortgagor on the lands known as "Candy's Landing," the other lands involved in this suit. All of these mortgages provided for further advances, in addition to the amounts named in them. Stickney did make certain advances on these three mortgages during the year 1885, and received certain payments thereon, which he offered to show came from the cotton raised on the places mentioned in the mortgages, and from certain rents, the notes for which had been transferred and assigned to him by the makers of those mortgages. This was refused him under the chancellor's rulings. He offered to show also, that J. P. Moore was working the John R. Moore home place, and Mat Moore the Candy's Landing place, and that Tom Moore was not engaged in working either, and that all he received was from these crops and rents, as mentioned. He was not only denied the opportunity to show this, but was required by the chancellor's rulings to apply the payments made out of such crops to the mortgage balance on the lands, and leave his advances during 1885, made on those three crop mortgages of that year, wholly unsecured and unpaid. The advances made by him in 1885 consisted almost wholly of money, $652 of which was applied to the prior mortgage of L. J. Lawson on the same lands, $122.72 was for state and county taxes on the property, $100.50 was paid Mrs. Childress, who held a prior mortgage on the home place lands, to induce her to stay her sale under the power of sale in her mortgage, and $12, the cost of the advertisement she had made for such sale. The whole amount of such advances, exclusive of interest on the previous balance on the land mortgage, was, with interest thereon, as he charged it, $1,166.21. He received from the crops of cotton $1,335.68. He kept his account on his books by bringing forward the balance from the year 1884, which was secured by mortgage on the lands, and interest thereon, and credited the same by the proceeds of the cotton received by him, and the payments for certain mules, embraced in his previous mortgage, and sold by the Moores to certain of their tenants. The proceeds of the cotton in 1885 exceeding the amount of the advances, there was thus a balance of such proceeds carried to the credit of the debtors, by the proper statement of the account, as made by the register. But the chancellor, as already stated, decreed all the proceeds of the crop of cotton received from 1885 crop should go to the credit of the land mortgage, without any deduction for the advances made by Stickney in that year, with which to make that crop.

The chancellor rendered a decree in the cause on July 13, 1892 by which he ascertained, in general, the equities of the several mortgages and the mortgagors, and indicated that certain amendments were necessary in the respective pleadings of some of the parties, which he granted permission to make. Afterwards, and in the line of opinion and decree, a consent decree was made, dated March 24, 1893, fixing the equities of the several parties, and referring it to the register to ascertain and report how much was due on each mortgage. So far as appellant's interest was affected thereby, his mortgage on the lands was recognized, and the register was directed, in stating his account, to ascertain and report what amount, if any, of usurious interest was charged by him on his debt. Proceeding under that decree, the register on the 10th day of May, 1893, began the execution of his reference, and after thorough examination and consideration he made an exhaustive report as to each of the matters presented for his action. By that report he ascertained and reported that Stickney had taken and received the personal property embraced in his mortgage for the year 1883, by agreement with the mortgagors, at an agreed valuation in payment and satisfaction of their previous indebtedness, and that the parties had concluded the previous dealings between themselves, eliminating all questions of usury for such prior transactions. He started, therefore, the account between him and the mortgagors from March 18, 1884, with the price of the personal property delivered to Stickney by the Moores, and resold to them by him and added to this the advances otherwise made to them by him during 1884, allowing only legal interest thereon, and credited them by the payments made thereon, with the proper additions of interest, and ascertained...