Baker v. Orr

SAYRE, J. By his hill appellee sought to foreclose first and second mortgages on appellant’s tract of land, and had relief as to both. No error is assigned upon the decree in respect to the second mortgage. Defendant, Tony Baker, had formerly owned the land, but had lost it by foreclosure. He had no interest whatever in the land nor any right concerning it. The transaction in question had its origin in his effort to repurchase. He went first to Judge Russell who represented the nonresident owner. By Judge Russell he was advised to go to some neighbor who would be able and willing to make arrangements for him. He went to complainant. The extent of what followed as shown by the paper writings, is that complainant, on February 8, 1904, purchased the land from the nonresident owner taking a conveyance of the absolute fee. On April 29, 1904, he entered into an agreement with defendant by which he undertook to make a deed upon the payment by defendant of $225 in installments of $75 payable October 1st, next, and annually thereafter. On October 20, 1904, defendant paid $100, and complainant made his deed on the consideration previously agreed upon, and at the same time took defendant’s mortgage to secure a recited balance of $150. Defendant’s contention is that the purchase price paid by complainant was a loan to him (defendant), that complainant’s purpose in taking title was to secure this loan, and that the excess secured by the mortgage over the price paid by complainant was a device to cover usury. On this theory, and on testimony in support of it, defendant asks relief in his cross-bill. Complainant’s testimony is that the several writings express the whole truth of the transaction. This branch of the case might well be disposed of on the ground that defendant had failed to sustain the burden of proof which rested upon him in the premises [668] Defendant must- fail for another reason. Whatever may have been the original expectations of the parties as to complainant’s dealing with the property after he should acquire title, until the contract of April 29, 1904, was entered into, defendant had no agreement of legal cognizance, nor any right whatever in the premises. The statute of frauds, stood in his way.—Tillman v. Kifer, 166 Ala. 403, 52 South. 309. Complainant had the legal right to dispose of the property on his own terms. The payment of the purchase money to the nonresident owner was not, therefore, a loan to defendant. Thus every feature resembling a loan is eliminated from the case, and, as for anything yet appearing, defendant has no coigne of vantage from which to attack the transaction as usurious.—Dykes v. Bottoms, 101 Ala. 390, 13 South. 582. The decree below directed that the sum of $100, paid as above noted, be credited upon the principal then due and to become due, decreeing the foreclosure for the balance of the agreed purchase price, $125, without interest. The ruling was that the contract of security here sought to be enforced was usurious — a ruling in favor of the appellant. The taking of the mortgage did not affect the complainant’s original debt or his right to interest thereon, or' any remedy he might have for recovery of the same apart from the mortgage, but affected only, we take it, the security now in suit. Appellant insists that he was entitled to recover costs inasmuch as complainant was denied interest because usury had been reserved in the manner already pointed out. Before the bill was filed the parties negotiated for a settlement. Defendant expressed a willingness to pay the debt secured by the first mortgage, but complainant would not enter into any settlement that would not embrace the indebtedness secured by both. There was no suggestion of usury at that time, nor was any tender [669] made. Much of the cost of the litigation which has followed was .incurred in defendant’s contention — groundless, as the event has shown — that he had a contract for the purchase of the land on terms different from those shown by the paper writings, and about items of credit which did not affect the question of usury. There was hardly more than a formal denial of usury as the court found it. To require the complainant to pay full costs under these circumstances would have been inequitable. Section 3665, Code 1907, did not control the case. The Legislature has not intended to take away the power of courts of equity to settle the question of costs equitably in all cases. Costs in chancery may be apportioned at the discretion of the chancellor. — Code, § 3222; Ward v. Bank of Abbeville, 130 Ala. 599, 30 South. 341; Sullivan Timber Co. v. Black, 159 Ala. 570, 48 South. 870. In Neal v. Clay, 48 Ala. 252, this court, proceeding to render the judgment that the court below should have rendered, found usury and taxed the costs against the complainant; citing section 2781 of the Revised Code, which is section 3665 of the present Code. In the same connection it cited Black v. Hightower, 30 Ala. 317, which was a case at law. The award of costs in that case is to be justified on the general principal of equity which is declared in section 3222. In- the case at hand we are unwilling to say that the chancellor exercised his discretion improperly. We need not consider those assignments of error Avhich relate to rulings on evidence. That excluded as Avell as that admitted is to be found in the transcript, and, if all those rulings complained of had been different, the result would not have been otherwise. Let the decree of the chancery court be affirmed. Affirmed. Dowdell, O. J., and Anderson and Mayfield, JJ., concur.