Knight v. Drane

CLOPTON, J. We concur with the chancellor, that the bill is without equity. The right of the mortgagor to set off the mortgage debt by a debt or demand due him by the mortgagee, in equity, depends, in some cases, on which party resorts to equity. When the mortgagee brings a bill in equity for the foreclosure of the mortgage, the mortgagor may set up any defense*- other than the statute of limitations, which would avail in an action at law on the debt, and hence may, in reduction or extinguishment of the mortgage debt, set off any debt or demand that would be available at law. It is, however, well settled, that when it becomes necessary for the mortgagor to resort to equity, to obtain the benefit of a set-off, he must allege and show some other ground of equitable interposition, than the mere existence of a legal demand, which is the proper subject of set-off under the statute. — Gafford v. Proskauer, 59 Ala. 264. The proceeding by the mortgagee, to foreclose under the power of sale, rendered it necessary for the mortgagor to resort to equity to obtain the allowance of the set-off. The demands which he proposes to set off are purely legal, and the estate of Mrs. Harrell is shown to be amply solvent. The bill does not allege the insolvency of the administrator or his sureties, or any agreement that the demands should be applied in abatement of the mortgage debt, or any facts showing that his remedy at law is, in any respect, complicated, embarrassed, or inadequate; and without an agreement, or some equitable ground, the law does not apply the set-off in payment of the mortgage debt. The tender to the mortgagee, having been declined by him, is insufficient; and the allegation of great damage is unsupported by any facts. The bill fails to show any ground of equitable relief. Affirmed.