Noble v. Graham

SHARPE, J. Apparently the object of the amended bill of complaint is to effect redemption of complainant’s lands from a mortgage given by her to James T. May and afterwards acquired by -defendant George D. -Noble, and to’remove impediments to such redemption, one of which exists in the form of a conveyance of complainant’s equity of redemption to George D. Noble, and another in the form of a conveyance from the latter to the defendant, Ida P. Noble. This appeal being from a decree overruling a demurrer,- brings for consideration the merits of the bill only so far as the same depends upon the case made for avoiding the conveyance of complainant’s equity. To this phase of the case is applicable the principle which in Goodman’s Ex’rs. v. Pledger’s Admrs., 14 Ala. 114, was thus stated: “The mortgagor of property, real or personal, may sell, or otherwise dispose of the equity of redemption, and the law does not render the mortgagee incapable of purchasing from him, The mortgagor, therefore, has the right to sell, and the mortgagee the capacity to buy the equity of redemption. But the principle is settled, and-we think in accordance with strict morality, that if the mortgagee use the power his mortgage may have given him, to obtain the equity of redemption at less than its value, aud for less than others would have given for it, a court of equity will hold the transaction a mortgage, and permit the mortgagor to redeem.” For authorities recognizing the correctness of this principle see Oakley v. Shelley, 129 Ala. 467; Locke’s Ex’rs. v. Palmer, 26 Ala. 313; Hyndman v. Hyndman, 19 Vt. 9; 46 Am. Dec. 171; Jones on Mortgages, § 1046. [417] In the bill it is in substance alleged that the mortgaged lands are worth $2,000.00; that the note complainant originally gave to May and secured by the mortgage was for $650.00, which sum included usurious charges; that by deducting such charges and payments by her to May, nothing would be due, though offer is made to pay with interest such amount as on an accounting may be found due on the mortgage. It further appears from the bill that defendant George D. Noble claimed the mortgage through transfers made after maturity of the same, beginning with a transfer from May’s trustee in bankruptcy. Also that he advertised the lands as for sale under the mortgage and demanded possession of them while they constituted tbe home of complainant; that she was nearly sixty years of age, suffering great bodily pain and addicted to the excessive use of morphine. It is further •shown that under the circumstances mentioned, complainant orally agreed to give a deed to George I). Noble and to turn over to him certain personal property, in consideration of his paying her $180.00 in cash, furnishing her a home on the land and necessaries for her support through life. It is further alleged in substance that George D. Noble wTrote the contract whereby complainant conveyed the land to him absolutely and intentionally omitted therefrom his oral promise; that complainant signed the same in reliance upon his representation that the writing embodied all the oral agreements previously made; that he thereafter gave her a written promise which as exhibited shows nothing of his agreement to furnish necessaries for her support and that he refuses to contribute to her support. The averments from which this statement of facts is condensed may be lacking in formality and the bill may not be above criticism in other respects, but assuming the truth of these averments as must be done on demurrer, and applying thereto the doctrine above referred to, the bill must be held good as against objections raised-by the demurrer. The bill shows that under the contract sought to be avoided George D. Noble received personal property worth more than the $180.00 he paid under the contract, [418] and this fact obviates tlie objection made to tbe bill on account of tbe absence therefrom of any offer to make restitution of that sum. Affirmed.