Birmingham Industrial Co. v. Phillips

SAYRE, J. In 1908 appellant, proceeding under a power vested in it by a mortgage given by appellee on valuable property in Birmingham, foreclosed the mortgage, and purchased at the sale. Shortly thereafter appellee filed the bill in this case, averring that appellant, had abused the power vested in it by the mortgage for the following reason, in substance: Appellee had purchased the Birmingham property from appellant, had conveyed a certain plantation in Russell county in part payment, and had given the mortgage in question to secure the balance. That was in June, 1907. At the same time the parties entered into a collateral agreement in writing by the terms of which appellee was to remain in charge, control, and superintendence of the plantation until the crops of the current year should be gathered, and for advances theretofore made and thereafter to .be made by him to 'share croppers and wages hands on the place appellee was to be reimbursed by appellant in the fall; that at the same time there was an understanding, verbally expressed between the parties, that appellee’s indebtedness to appellant was to stand as security for his reimbursement on account of the advances aforementioned; and that, when the first installment of appellee’s debt fell due, appellee, claiming a set-off on account of advances in the sum of $1,266.95, had tendered the balance, but appellant had refused to allow the same, and had proceeded, wrongfully therefore, to foreclose. Appellee’s bill prayed that the foreclosure sale be set aside, that an accounting he had, and that appellee be allowed to redeem in virtue of his equity of redemption. The circuit court on hearing the pleading and proof granted relief according to the prayer of the bill. [1] Appellee’s bill, as a bill to enforce an equity of redemption — and it is not sought to sustain it on any other ground — depends for its equity on appellee’s contention that there was a contract by which, in effect, his indebtedness to appellant was to stand as security for appellee’s advances to share croppers and wages hands on the Russell county plantation, or, in other words, that appellant would not foreclose except for any balance that might remain after allowing appellee credit for such advances. In the- absence of such. agreement appellee could only have availed himself of the set-off averred by filing a hill in advance of foreclosure, alleging appellant’s insolvency or some other special equity. Gafford v. Proskauer, 59 Ala. 264; Knight v. Drane, 77 Ala. 371; Conner v. Smith, 88 Ala. 300, 7 South. 150; Caldwell v. Caldwell, 166 Ala. 406, 2 South. 323, 139 Am. St. Rep. 48. No other special equity is alleged or proved. [2, 3] It will be conceded that, if the controverted issue of fact thus presented' stood for decision on the testimony of appellee alone, and if a decision as to that would establish the equity of the bill, the decree under review could not be disturbed. But, conceding the competency of the evidence in support of such agreement, the burden of proof rested upon appellee, and the evidence to sustain it must have been direct and definite. 3 Jones on Mtgs. (7th Ed.) §§ 1496, 1811. The fact, however, is that the mortgage contains no stipulation in agreement with appellee’s contention. Nor does the collateral agreement in writing. On the contrary, that agreement tends strongly, if not explicitly, to support appellant’s denial of appellee’s contention and the theory of the former as to the manner in which appellee was to receive reimbursement, for advances made and to he made by him, i. e., out of the crops when gathered. Appellee averred in his original bill that appellant’s agent, Bradshaw, had practiced a fraud upon him, and had palmed off an agreement different from his understanding as to what it contained: but the evidence cannot be held to sustain this averment. The testimony of Bradshaw, interested as the virtual owner of appellant corporation, and of Eborn, who had an interest in the original transaction, but is not interested in the result of this litigation, contradicts appellee as to the agreement. Upon the whole, we are unable to find in agreement with appellee’s contention that appellant violated an understanding and agreement as to the circumstances in which the power of sale was to be executed. The foreclosure sale cannot therefore be avoided on the ground contended for, and the decree rendered in the circuit court must be re *469 versed. A decree will be here rendered, dismissing appellee’s bill. Reversed and rendered. ANDERSON, C. J., and GARDNER and MTDLER, JJ., concur.