Butts v. Broughton

SOMETtVILLE, J. We can not clearly see that the chancellor erred in holding the transactions between the decedent, Benjamin Butts, and the appellee, Broughton, to be free from the taint of usury. His ruling on this point must, therefore, be permitted to stand in the present state of the evidence. Derrick v. Brown, 66 Ala. 162; Donegan v. Davis, Ib. 362; Rather v. Young, 56 Ala. 94. It may be seriously questioned, moreover, whether a mortgage debt can be impeached for usury by any other person than the mortgagor, or his personal representative. It has generally been held in this State to be a defense purely personal, and capable of being waived by the debtor, or his personal representative, who, it has some times been said, alone have the right to plead it.—Cain v. Gimon, 36 Ala. 168; Sayre v. Fenno, 3 Ala. 458; Cork v. Dyer, 3 Ala. 643; Baskins v. Calhoun, 45 Ala. 582; McGuire v. Van Pelt, 55 Ala. 344; Gray [298] v. Brown, 22 Ala. 262. It may be conceded, however, that the current of modern authority supports the contrary view. 1 Jones on Mortgages, § 644. And in Hunt v. Acre, 28 Ala. 580, it seems to have been assumed that the right to set up the defense of usury could be claimed by the heirs of the mortgagor on coming into equity to redeem the mortgaged premises. But this point we do not decide. A bill to redeem a mortgage may be filed by any one who owns the mortgagor’s equity of redemption, or any subsisting interest in it, by privity of title with him, whether by purchase, inheritance, or otherwise. This principie would embrace not only heirs of the mortgagor, but also his widow who had joined with him in the mortgage, so as to have released her dower. 2 Jones on Mortgages, §§ 1055, 1061; Eaton v. Simonds, 14 Pick. (Mass.) 98; Lamb v. Montague, 112 Mass. 352. So, an estate of homestead in the mortgaged premises entitles the holder of it to redeem. — 2 Jones on Mortgages, § 1069. Mrs. Lucinda Butts was, in view of these principles, a proper party complainant to the present bill. The mortgage debt of March 13, 1871, for seven hundred ■and twenty-four 50-100 dollars, and accrued interest, was properly decreed to be a valid lien on the mortgaged premises. The mortgage was executed prior to the statute of April 23, 1873, and the acknowledgment of its execution by the mortgagor and his wife, certified in the form prescribed by statute for ordinary conveyances, satisfied the requirements of the constitution of 1868, then of force, as to the wife’s voluntary signature and assent to the alienation of the homestead.—Lyons v. Conner, 57 Ala. 181; Const. 1868, Art. xiv, §§ 2 and 3. This debt is shown by the evidence, however, to have been satisfied by the rents of the mortgaged property collected by the appellee, Broughton. So, the other two notes executed by the decedent, Benjamin Butts, — the one for four hundred and seventeen 50-100 dollars, dated March 20th, 1870; and the other for three hundred and twenty dollars, dated August 10th, 1871,— clearly constituted an equitable Men upon all of the lands included in the first mortgage, excepting such portion of it as may have been lawfully exempted as a homestead, under the laws then of force governing the subject of homestead exemptions. The express declaration is made in them, that they shall be “ covered by,” or “ subject to ” the prior mortgage; and this sufficiently- evinced the intention of the maker to create an equitable lien, or mortgage, on the premises in question. In such cases, the form or language of the instrument is not material, except as an index of the intention of the parties. If it was intended as a security for a valid debt, and this is deduci [299] ble from tlie instrument itself, it must be construed to be an equitable mortgage.—1 Jones on Mortgages, §§ 166, 167; Newlin v. McAfee, 64 Ala. 357; Donald v. Hewitt, 33 Ala. 534. But it is an important fact, overlooked by tlie chancellor in bis decree, that these notes were signed by the husband alone ;■ and although they may be declared to be an equitable lien on the lands in controversy in excess of the homestead, as to the latter they can have no legal operation. As mortgages, they must be held void so far as concerns the homestead, because they were executed without the voluntary signature and assent of the wife.—Garner v. Bond, 61 Ala. 84; McGuire v. Van Pelt, 55 Ala. 344: Thompson on Homestead, §§ 474, 477. We are not to be understood as deciding that the voluntary signature and assent of the wife to a,mere equitable mortgage would come within the influence of the provision in the constitution, authorizing a “ mortgage or other alienation of tlie homestead.” See Jenkins v. Harrison, 66 Ala. 345. We think tlie chancellor erred, in not confining the lien of the above-described notes to the excess of the lands over and above the homestead estate, as allowed by the constitution of 1868.—Const. 1868, Art. xiv, §§ 2 and 3; Garner v. Bond, 61 Ala. 84, supra. . It was also error, not to charge the mortgagee with reasonable rents for the year 1875. The ruléis, that the mortgagee is entitled to the rents and profits after the law-day of the mortgage, and after 1ns entry on the mortgaged premises he is considered a trustee in respect to his liability for them. — 1 Jones on Mortgages, § 712. He is not only liable for such rents and profits as he may collect from others, but also for such as he has failed to collect through grossvnegligence, willful default, or fraud—Dozier v. Mitchell, 65 Ala. 511; Barron v. Paulling, 38 Ala. 292; 3 Lead. Cases Eq. (Hare & Wall.), 891-892. The mortgagee was in possession of the premises in the year 1875, having entered under the mortgage, and, through her agent and husband, the appellee, had undertaken to rent them to the widow and some of the adult heirs. She thus possessed a claim against the lessees for such rent, and was justly chargeable with it in the account taken by the register, which is shown to have been about the sum of three hundred dollars. The fact that the lessees permitted some of the other complainants, ex gratia, to remain on the premises during this time, does not affect the question of the mortgagee’s liability. For the above errors, the decree of the chancellor is reversed, and the cause remanded.