Tolleson v. Henson

• Decision Date: 18 May 1922
• Docket Number: 4 Div. 961.
• Citation: 93 So. 458,207 Ala. 529
• Parties: TOLLESON v. HENSON.
• Court: Alabama Supreme Court

93 So. 458

207 Ala. 529

TOLLESON v. HENSON.

4 Div. 961.

Supreme Court of Alabama

May 18, 1922

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Bill by Nora V. Henson against O. O. Tolleson for accounting. From a decree overruling demurrers to the bill, defendant appeals. Affirmed.

Farmer Merrill & Farmer, of Dothan, for appellant.

O. S Lewis, of Dothan, for appellee.

MILLER J.

This is a bill filed by Nora V. Henson, individually and as administratrix of the estate of George L. Armstrong deceased, against O. O. Tolleson for an accounting to purge part of the debt of usury, and for decree for balance due complainants by defendant. The defendant demurred to the bill as amended; it was overruled by the court; and the defendant appeals, and this decree is assigned as error.

George L. Armstrong died on March 14, 1919. Nora V. Henson was his widow. Armstrong and his wife executed four mortgages on 400 acres of land described in the bill as amended. One was dated May 25, 1911, given to G. M. Forman to secure $3,869.58; one was executed on the same day to G. M. Forman to secure $425.15; on February 3, 1915, they executed a third mortgage on the land to the defendant O. O. Tolleson to secure a debt of $2,800; and on July 30, 1915, they executed the fourth mortgage on the land to the defendant O. O. Tolleson, to secure a debt of $3,379, but this last mortgage debt included the third mortgage debt. The total debt secured by the third and fourth mortgages was $3,379. The bill avers that defendant exacted and complainants agreed to pay 10 per cent. interest per annum on this $3,379 to defendant. This debt bore a usurious rate of interest.

The second mortgage, securing $425.15, was, after maturity, on February 21, 1916, foreclosed by F. M. Gaines, who claimed to be transferee of it from G. M. Forman, and at the sale the defendant became the purchaser of the land for $450, subject to the first mortgage of $3,869.58. A foreclosure deed to the land was made by F. M. Gaines to the defendant. The defendant was then the owner of all the mortgage liens and debts on the land, except the first mortgage, securing $3,869.15, which was owned by George M. Forman. The bill as amended also avers the defendant-

"O. O. Tolleson endeavored to persuade the said G. L. Armstrong and your complainant to execute to him a quitclaim deed conveying the property described in paragraph 2 of this bill for a balance he claimed to be due by said G. L. Armstrong to him, but complainant avers that the said G. L. Armstrong and she refused to execute such a deed. Complainant further shows unto the court that in the month of February, 1917, O. O. Tolleson came to Blountstown, Fla., and represented to the said G. L. Armstrong and your complainant that, if we would execute to him a quitclaim deed conveying the property described in paragraph 2 of this bill, so as to enable him to sell the same, that he would sell said property, and after paying the mortgage to George M. Forman, and deducting the amount due him by the said G. L. Armstrong, under the mortgage described in paragraph 3 of this bill, the balance he would pay to the said G. L. Armstrong and your complainant; and complainant avers that, relying upon the representation of the said O. O. Tolleson, said G. L. Armstrong and she did, on, to wit, the 17th day of February, 1917, execute a quitclaim deed, at a recited consideration of $1 and other valuable consideration, a copy of which deed is hereto attached, marked Exhibit E, incorporated in and made a part hereof."

The deed purports to convey, and the parties agreed to convey, the entire 400 acres to the defendant; but the deed described inadvertently and by mistake the land numbers of only 240 of the 400 acres. The bill also avers the defendant sold 360 acres of the land to A. J. Brackin for $10,000, and executed a deed to him, and the defendant sold 40 acres, the balance of the land, to Travis Mixon, for which he received $1,000, and executed a deed to him. The complainants aver on an accounting defendant is justly indebted to them in a large sum of $3,500, or more, after all claims of defendant have been paid, and after paying the G. M. Forman mortgage out of the $11,000 received from the proceeds of the sale of the 400 acres of land. The defendant refuses to account to complainants from the sale of the land, and refuses to surrender the canceled mortgages executed to him, and defendant refuses to pay off and discharge the mortgage of complainants to George M. Forman. The bill seeks an accounting to ascertain the amount due on the mortgages, and that out of the $11,000 received by defendant from the sale of the 400 acres of land the mortgage debt of the Forman mortgage be paid, and then any sum that is or may be due defendant, and the balance to be turned over to complainants. The defendant was, at the time of the execution of the quitclaim deed to him by the complainants, a brother-in-law of George L. Armstrong, deceased.

The averments of the bill show the accounts between the parties are mutual. The complainants claim $10,000 and $1,000 due them by defendant for the sale of the lands, and they admit they owe defendant and the four mortgage debts should be ascertained, one of them purged of usury, if it exists, and the total amount be deducted from the $11,000. The bill also...