Tipton v. Wortham

• Court: Supreme Court of Alabama
• Citation: 9 So. 596,93 Ala. 321
• Parties: TIPTON v. WORTHAM ET AL.
• Decision Date: 24 June 1891

9 So. 596

93 Ala. 321

TIPTON
v.
WORTHAM ET AL.

Supreme Court of Alabama

June 24, 1891

Appeal from chancery court, Madison county; THOMAS COBBS, Chancellor.

Bill by Calvin J. Tipton against John W. Wortham and D. W. Duskin, to cancel a mortgage and redeem from a sale thereunder. Decree for defendant, and plaintiff appeals. Reversed.

The bill avers that on March 10, 1881, the complainant being indebted to one Larkin A. Wortham, as guardian of the respondent. John W. Wortham, then a minor, executed to him a note and mortgage to secure the payment of said indebtedness; that, after the execution of said note and mortgage, the said Larkin A. Wortham died, and one E. F. Walker was appointed and duly qualified as the guardian of said John W. Wortham; and that some time during the year 1887, after the ward became of age, said Walker made a final settlement of his guardianship, and turned over to the respondent John W. Wortham the note and mortgage above mentioned as his property; that after proper advertisement, on December 26, 1887, the said John W. Wortham, at public outcry, sold, or made "a pretended sale" of, the property described in the mortgage, and that the respondent Duskin became the purchaser thereof; and that at said sale the complainant forbade the sale of the said property, and gave public notice that all that was due on said mortgage had been paid; that in January, 1888, the complainant was served with notices from said John W. Wortham demanding possession of the land, but that complainant did not surrender the same, and refused to do so. The complainant further avers that he had, before the sale under the mortgage, paid all that was due on said note, which the mortgage was given to secure, having at different times made partial payments to each of the guardians of John W. Wortham; and that they failed to indorse any credit on the note or mortgage, or give him credit for such payment in any way; and he offers in the bill to pay any such amount as may be found to be due. The land described in the mortgage was averred to constitute the homestead of the complainant. The prayer of the bill was that the complainant be allowed to come in and redeem the land by paying whatever might be found due; that an account be stated; and that said mortgage be canceled. The defendants demurred to the bill on the grounds- First and second, that the said bill was a bill to redeem under the statute in this state, but that it did not aver that the...