Toney v. Burgess

• Decision Date: 29 June 1922
• Docket Number: 8 Div. 348.
• Citation: 93 So. 850,208 Ala. 55
• Parties: TONEY ET AL. v. BURGESS.
• Court: Alabama Supreme Court

93 So. 850

208 Ala. 55

TONEY ET AL. v. BURGESS.

8 Div. 348.

Supreme Court of Alabama

June 29, 1922

Appeal from Circuit Court, Franklin County; Charles P. Almon, Judge.

Suit by B. J. Toney and another against Charles R. Burgess, to enjoin foreclosure of mortgages. From a decree decree sustaining demurrer and dismissing the bill, complainants appeal. Reversed and remanded.

E. W Godbey, of Decatur, for appellants.

Travis Williams, of Russellville, for appellee.

THOMAS J.

The suit is for injunction to restrain foreclosure of mortgages. Respondent filed sworn answer to the bill as originally framed, incorporated demurrer therein, and moved the court to dissolve the injunction. The bill was materially amended. On final submission for decree upon demurrer and upon the motion to dissolve the injunction, "upon the coming in of the sworn answer of the respondent" the demurrer was sustained and the bill dismissed.

It is averred that W. Pink Burgess was administrator of an estate and B. J. Toney was surety on his bond as such personal representative; that said administration was duly removed to the chancery court and fixed liabilities were decreed in the case of Houston Burgess and others versus W. P. Burgess individually and as administrator. Burgess v Burgess, 199 Ala. 552, 75 So. 5; Id., 201 Ala. 631, 79 So. 193. On appeal to this court W. Pink Burgess executed a supersedeas bond in the penal sum of $4,033, with Charles R. Burgess and B. J. Toney as sureties. As inducement that Charles R. Burgess execute such supersedeas bond, W. Pink Burgess and wife and B. J. Toney and wife executed a mortgage to said Charles R. Burgess to indemnify him "against loss or liability" suffered by him on that "appeal and supersedeas bond," in the sum made and amount of the mortgage, and to hold the said Charles R. Burgess "harmless as against liability on the aforesaid bond." It is also averred that B. J. Toney joined in an execution of the same gratuitously, without any consideration moving to him.

To the bill as originally filed, defendant's sworn answer (filed October 25, 1920) contained the averments that after the case of Burgess v. Burgess was affirmed on last appeal, Charles R. Burgess paid the money necessary to effectuate a full settlement of that decree amounting to $3,281.76; that W. Pink Burgess owed Charles R. Burgess "other moneys" (than that for the assumption of liability indicated), evidenced by notes and mortgage; that W. Pink Burgess died on November 7, 1917, and B. J. Toney became administrator of his estate; and that Charles R. Burgess, having filed his several claims against that estate on June 7, 1918, the administrator requested foreclosure of the indemnity mortgage and the other mortgages secured by the lands of W. Pink Burgess, deceased. The indemnity mortgage of $4,033 was secured by certain lands belonging to W. Pink Burgess and certain of the lands of B. J. Toney; and on the foreclosure only the lands of W. P. Burgess were sold, and Tim E. Toney became the purchaser for the sum of $5,343.93, that being the amount which the estate of W. P. Burgess owed Charles R. Burgess at that time. A deed to the purchaser of foreclosure sale was made by Charles R. Burgess on August 10, 1918, when the payment of this purchase money was arranged as follows: On execution of a deed to the Burgess land, Tim E. Toney and wife and B. J. Toney and wife executed to Charles R. Burgess a mortgage for $5,343.93, the amount of the purchase money of the Burgess lands on foreclosure sale. And in addition to the execution of said mortgage B. J. Toney and Tim E. Toney signed the notes for which the mortgage was given as security. It is further averred that Tim E. Toney went into possession of the Burgess land he had brought on foreclosure and that B. J. Toney remained in possession of the lands which he put in the mortgage as security. The last mortgage embraced not only the lands purchased by Tim E. Toney at foreclosure sale, but also 137 acres belonging to B. J. Toney. It is noted from the averments in pleading that, notwithstanding the several transactions indicated, the lands given as security in the last mortgage of date August 10, 1918, signed by B. J. and Tim E. Toney and their wives, were the same as contained in the indemnity mortgage of date August 16, 1917, executed by W. P. Burgess and wife and B. J. Toney.

After the foreclosure of the mortgages by W. Pink Burgess to Charles R. Burgess, Mattie Suggs, the sole surviving heir of W. Pink Burgess, deceased, sold and conveyed, or assigned, to W. L. Chenault her right of redemption under the statute, of the Burgess lands from said mortgage foreclosure, and said assignee of that statutory right filed his bill in the chancery court to redeem the Burgess land, making Charles R. Burgess a party as the holder of said mortgage against the lands, and the amount necessary to effectuate redemption was paid into court. Respondent's answer was to the bill as originally filed; which contained the averments that by final decree of the court in said cause (Toney v. Chenault, 204 Ala. 329, 85 So. 742), to which these complainants (B. J. and Tim E. Toney) and Charles R. Burgess were respondents. Chenault was let in to redeem at and for $5,293.69, and the redemption money was ordered paid by the register to complainant on the 1918 mortgage, and the Pink Burgess lands so redeemed were relieved of the mortgage by that decree. And it is averred that the sum thus ascertained as due was paid by the register on said mortgage on June 25, leaving a balance due on said mortgage on September 25, 1920, on which date the B. J. Toney lands, described in said mortgage, were advertised to sell, that balance being "the sum of $957.27."

By way of amendment (of the original bill) of date November 29 1920, it was averred that the redemption sought by Mr. Chenault was from the mortgage of date August 16, 1917, and that on August 10, 1918, the mortgagee, Charles R. Burgess, by agreement between said mortgagee and B. J. Toney, "the Burgess tract of land described in...