Thompson v. Atchley

• Decision Date: 20 December 1917
• Docket Number: 8 Div. 20
• Citation: 201 Ala. 398,78 So. 196
• Parties: THOMPSON v. ATCHLEY.
• Court: Alabama Supreme Court

78 So. 196

201 Ala. 398

THOMPSON v. ATCHLEY.

8 Div. 20

Supreme Court of Alabama

December 20, 1917

Rehearing Denied March 23, 1918

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Suit in equity by George D. Atchley against Mary F. Thompson to redeem, and to cancel and surrender a mortgage. From decree for complainant, respondent appeals. Affirmed.

Mayfield Sayre, and Gardner, JJ., dissenting.

For dissenting opinion, see 79 So. 478.

W.F Esslinger and Betts & Betts, all of Huntsville, for appellant.

David A. Grayson and James H. Ballentine, both of Huntsville, for appellee.

McCLELLAN J.

At the time this bill was filed by Atchley (appellee) against Mrs Thompson (appellant) there was an outstanding unforeclosed mortgage on appellee's lands in Madison and Marshall counties to secure appellee's note to appellant for $3,000.

Redemption, under the equity to that end, was the original bill's object, together with the cancellation and surrender to appellee of an elder mortgage on the land given by the appellee to Mrs. Humes, which the appellant had caused to be transferred to her. Subsequent to the filing of the bill, the appellant proceeded to foreclose her mortgage under the power of sale therein provided; but, according to the authority of Carroll v. Henderson, 191 Ala. 248, 68 So. 1, the right to exercise the power to foreclose by a sale is postponed or subordinate to the equity to redeem, put into effective previous motion by the filing of the bill to redeem. The writer entertained and set down a different view (Presnall's Case, 181 Ala. 263, 270, 61 So. 804; Carroll v. Henderson, 191 Ala. pp. 253-258, 68 So. 1); but the decision of the court was as stated, and its rule must be here observed and applied, to the end that the appellee's right to redeem under his equity, not in virtue of the system provided for statutory redemption, is clear and is to be given effect.

F.T. Petty was a practicing attorney at Huntsville, who made loans of money of others on mortgage, and Mrs. Thompson also resided there. Previous to March, 1915, appellee had executed to Mrs. Humes a mortgage on his land to secure a note for $1,500. Appellee approached Petty for a loan, and during the interview Petty advised appellee that appellant had money appellee could borrow on his land, if the title was good; but that appellant would not take a second mortgage--a mortgage subordinate to that held by Mrs. Humes. The loan of $3,000 to appellee from appellant was agreed upon between Petty and appellee, without consultation or communication between appellee and appellant; the appellee promising to pay Petty $100 for his services in the premises, to be deducted by Petty from the sum so borrowed. Petty investigated and approved appellee's title to the lands, drew the appellee's note and mortgage to appellant for the loan, and turned them over to appellee for execution by his then absent wife. It was agreed by Petty and appellee that Petty should deduct from the loaned sum the amount, among others, of Mrs. Humes' mortgage debt and interest and discharge Mrs. Humes' debt, thus, in consequence, relieving the land of the mortgage prior to that of appellant, and pay to the appellee the net difference between the indebtedness of and charges against the appellee and the $3,000 so borrowed. A short time subsequently, the appellant delivered her personally signed check for $3,000, payable to appellee, to the teller of the bank with which she did business in Huntsville, directing him to deliver the check to appellee when the teller received from him the properly executed note and mortgage for the loan. This check was delivered and later cashed, and the appellee's note and mortgage were delivered to the teller, and subsequently these papers were turned over by the teller to the mortgagee, the appellant. Appellee denied the delivery of the check to him or to any one for him, and also denied the indorsement of the check, which indorsement was in the name of the payee in the check, the appellee mortgagor.

While the evidence is conflicting, at least in degree, on the issue whether the appellee received or indorsed the check or was present in the bank with Petty when the teller parted with the possession of the check, yet, after a careful review of the whole evidence relevant to this issue, particularly these features of evidence--the signature as of appellee on the back of the check and on other original papers certified to this court--our opinion is that the clear preponderance of the evidence is to the effect that appellee did not himself receive the $3,000 check from the teller and did not himself indorse the $3,000 check. According to the effect of the evidence, the only check relating to this matter appellee received was one for $777.24, payable to appellee, signed by Petty individually, of date April 17, 1915, and marked (stamped) paid on April 20, 1915, bearing this notation, "For Mrs. Mary F. Thompson, loan in full." This check's amount represented the difference, before mentioned, between the sum of the loan, viz. $3,000, and the aggregate of appellee's then indebtedness and the charges the appellee agreed to pay. Undoubtedly, the amount of the Humes mortgage debt was a factor in the calculation which gave the net difference represented by the check for $777.24. At the time Petty gave appellee this check for $777.24, Petty also gave the mortgagor appellee the following writing, signed for Mrs. Thompson, the mortgagee, by Petty, attorney:

"This is to certify that on the mortgage of George David Atchley to Mrs. Mary F. Thompson, amounting to $3,000, of date March 31, 1915, the prior mortgage of $1,500 and one year's interest, making a total of $1,620, is a part of the said $3,000, and is to be taken care of and to be paid by Mrs. Mary F. Thompson, this the 31st day of March, 1915. [ Signed] Mrs. Mary F. Thompson, by Turner Petty, Atty."

About 15 months later Petty absconded. The mortgage held by Mrs Humes was not paid, as the quoted writing assured it would be paid, out of the funds retained by Petty for the purpose. Subsequently, Mrs. Thompson caused the Humes mortgage to be transferred to her, and relies upon it as an outstanding obligation against appellant and a charge upon his lands. As appears, a vital question in the cause is whether Petty was Mrs. Thompson's agent or Atchley's agent in respect of the application of the money so retained to the discharge of the Humes mortgage debt, with the result to attend that, if Petty was Mrs. Thompson's agent in that particular, Atchley's only obligation under his mortgage to Mrs. Thompson was and is to repay the $3,000 and interest, whereupon Atchley was and is entitled to have the Humes mortgage canceled and surrendered to him by Mrs....