Williams v. Noland

BROWN, J. The bill as last amended is one by the mortgagor against the mortgagee, filed pending foreclosure to enforce the equity of redemption and enjoin the foreclosure of the mortgage under the power of sale; and, as incidental relief, the bill prays for an accounting to purge the debt secured by *65 tlie mortgage of usurious interest and to ascertain the amount due thereon. [1] The complainant offers to do equity, and avers' that he stands ready and willing to pay whatever may be found to be due on the mortgage debt. This is a sufficient offer to do equity, and an actual tender was not necessary to give the bill equity. Murphree v. Summerlin, 114 Ala. 54, 21 South. 470; Jackson v. Putman, 180 Ala. 39, 60 South. 61; Security Loan Association v. Lake, 69 Ala. 456; Adams v. Sayre, 70 Ala. 318; Presnall v. Burgess & Co., 181 Ala. 263, 61 South. 804; Pryor v. Hollinger, 88 Ala. 405, 6 South. 760. [2, 33 In view of the averments in the bill that complainant made numerous payments on the debts secured by the mortgage, and from time to time and year to year delivered to the respondent the products of his farm to be credited thereon; that he kept no record of such payments, and that he depended on the promises of the respondent to keep a record of such credits; and that the respondent kept books which he refused to allow the complainant to .examine, and repeatedly refused to give complainant a statement of his account, although demand therefor was made — the character of the bill, as one to enforce the equity of redemption, is not changed in any of its aspects to one seeking cancellation of the mortgage as a cloud on complainant’s title by the averment that complainant “does not know whether he is indebted to the respondent or not, and, if indebted, in what amount he is indebted,” although the bill prays, in the alternative, that, in the event it be ascertained on an accounting that the debt has been paid in full, the mortgage be canceled of record, and the bill was not subject to the objection that it did not aver that the complainant was in possession at the time of the filing of the bill. There is in the bill an absence of affirmative averment that the debt has been paid in full. Such averment is essential to constitute it a bill to remove the mortgage as a cloud on the title. Drum & Ezekiel v. Bryan, 193 Ala. 395, 69 South. 483. . [4] Aside from these considerations the bill shows that the mortgage was given to secure a debt then existing and for advances to be made without an adjustment or settlement of the accounts between the parties, so as to ascertain and state a balance due on past transactions, and without regard to the amount actually due at that time, with an understanding that all such matters would be adjusted in the future. This arrangement between the parties left the account open from beginning to end, which condition of the account would “extend the issues in an action at law to the question of the balance actually -due upon all their business transactions. This would involve such a multiplicity of items of debit and credit * * * as would defy any clear and intelligent solution at the hands of a jury in a collateral proceeding at law;” thereby rendering complainant’s remedy at law wholly inadequate. Cudd v. Cowley et al., 203 Ala. 665, 85 South. 13. [5] As before stated, the bill shows that the mortgage was given to secure a debt arising from previous dealings between the parties and for advances to be made, without an adjustment of the amount due on the date it was executed, and on which, as the bill avers, numerous charges of usurious interest have been made. These averments are sufficient to show that the debt secured by the mortgage was infected with usury; and the averments as to the amount of usury charged appear to be as full and specific as the circumstances of the case justify. [6] The contention of the appellee that it was essential to the equity of the bill that the complainant tender or offer to pay the debt with legal interest is fully answered in Reynolds v. Lee et al., 180 Ala. 76, 60 South. 101. [7] A mortgagee in possession before foreclosure must account to the mortgagor in a proceeding to redeem from the'mortgage for the rents and profits arising from the mortgaged property, and the mortgagor is entitled to have such rents applied in the ex-tinguishment of the mortgage debt. Roulhac v. Jones, 78 Ala. 398; Turner v. Wilkinson, 72 Ala. 361; Denby v. Mellgrew, 58 Ala. 147; Downs v. Hopkins, 65 Ala. 508. And, in such proceeding to redeem, the mortgagor would be entitled to have the rents accruing at any time subsequent to a statement of the accounts between the parties so credited. So the averment in the bill as amended to the effect that subsequent to the filing of the bill the mortgagee was let into possession under an agreement to pay rent did not render the bill demurrable. McMinn v. Karter, 123 Ala. 502, 26 South. 649; Barter v. Fields, 130 Ala. 430, 30 South. 504. [8] It appears that respondent had in his possession a book containing the accounts between the parties, which he refused to allow inspected except in court, and that the complainant had no such books of accounts or records. Therefore additional ground (e) of demurrer was not well taken. As we view the case, the bill was not subject to any of the stated grounds of demurrer, and the court erred in sustaining them. Let the decree sustaining the demurrer be reversed, and one here rendered overruling the demurrer and remanding tire cause for further proceedings. Reversed, rendered, and remanded. ANDERSON, O. J„ and SAYRE and GARDNER, JJ., concur.