Union Central Life Ins. Co. of Cincinnati, Ohio, v. Thompson

• Decision Date: 30 November 1934
• Docket Number: 4 Div. 786.
• Citation: 229 Ala. 433,157 So. 852
• Parties: UNION CENTRAL LIFE INS. CO. OF CINCINNATI, OHIO, et al. v. THOMPSON.
• Court: Alabama Supreme Court

157 So. 852

229 Ala. 433

UNION CENTRAL LIFE INS. CO. OF CINCINNATI, OHIO, et al. v. THOMPSON.

4 Div. 786.

Supreme Court of Alabama

November 30, 1934

Appeal from Circuit Court, Pike County; W. L. Parks, Judge.

Suit by John D. Thompson against the Union Central Life Insurance Company of Cincinnati, Ohio, and others for an injunction against foreclosure of a mortgage and other relief.From a decree overruling a motion to dissolve and discharge the injunction, respondents appeal.

Affirmed.

Ballard & Ballard, of Montgomery, for appellants.

L. H Brassell, of Troy, for appellee.

BROWN Justice.

Bill by a mortgagor in possession filed pending foreclosure under the power of sale, against the mortgagee and its attorneys who were proceeding with the foreclosure, for an accounting and the ascertainment of the amount due on the mortgage debt, and to enjoin the foreclosure.

The property was advertised for sale on July 5, 1934, at the courthouse door in Troy, Ala.; the bill was filed and the injunction issued on July 3d, but the writ was not served on the defendants until the 6th of July.After the filing of the bill, the defendants, not having notice of the issuance of the injunction, proceeded with the sale, the mortgagee becoming the purchaser at the sale, and foreclosure deed was executed to it and filed for record on the date of the sale.Thereafter motion was made by the defendants"to dissolve and to discharge the injunction" for want of equity in the bill, upon the denials of the answer, and because the injunction was not served "before the act sought to be enjoined was done."On the hearing of the motion "to dissolve and to discharge the injunction" an interlocutory order was entered by the court denying the same.

On the day that the court denied the motion to dissolve and discharge the injunction, the complainant filed a petition praying that the foreclosure sale "be set aside, vacated and held for naught," etc., and on the hearing of the petition the court granted the same.

This appeal is from the decree overruling the motion "to dissolve and to discharge the injunction."

The bill alleges that the original amount of the mortgage debt was $4,000, for money borrowed, which did not exceed 60 per cent. of the actual market value of the property, which is reasonably worth $8,000; that complainant"has paid about $1,000.00 to said company (the mortgagee) on said mortgage debt, though said company contends that orator now owes * * * more than $3,600.00, notwithstanding said payments; that if orator is given credit for all such payments he will not be due company said sum of $3,600.00 nor nearly that amount."

The complainant in his bill submits himself to the jurisdiction of the court and offers to do equity, and to pay such amount as the court may ascertain and decree due on the debt.

These averments, under the repeated decisions of this court, give the bill equity.Boyd et al. v. Dent,216 Ala. 171113 So. 11;Gauntt v. McKissack,226 Ala. 624, 148 So. 325;Ezzell v. First Nat. Bank of Russellville,218 Ala. 462, 119 So. 2;Hall v. Holly et al.,220 Ala. 597, 598, 127 So. 164;Dudley et al. v. Colonial Lumber Co.,223 Ala. 533, 137 So. 429;Moore v. Berryman et al.,224 Ala. 555-558, 141 So. 192.

In considering the ground of the motion to dissolve for want of equity, amendable defects in the bill are considered as made.Holcomb et al. v. Forsyth,216 Ala. 486, 113 So. 516;Chambers et al. v. Alabama Iron Co.,67 Ala. 353.

"And when the motion is grounded on the denial in the answer, the allegations of the bill will be taken as true, unless self-contradictory, or positively denied, and matters in avoidance will not be considered."Holcomb et al. v. Forsyth,216 Ala. 486, 489, 113 So. 516; 518;Moses v....