Opinion
2 Div. 706.
November 25, 1920.
Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.
I. I. Canterbury, of Linden, for appellant.
The demurrers go to only parts of the bill. Simms, Chancery Prac. 430. The equity of the bill was not destroyed by the prayer in the alternative. 122 Ala. 518, 26 So. 133. The bill properly made a case for an accounting. 93 Ala. 542, 9 So. 256; 54 Ala. 378, 25 Am. Rep. 711; 181 Ala. 320, 61 So. 941; 176 Ala. 223, 57 So. 696; 7 Ala. 217. The demurrer admits that the mortgage was given dependent upon a future settlement, and that the debt, if any, ascertained to be due on such settlement, would be the amount covered by the mortgage. 176 Ala. 381, 58 So. 283, 40 L.R.A. (N.S.) 129, Ann. Cas. 1915A, 714. Usurious charges would be eliminated by the accounting. 181 Ala. 271, 61 So. 804; 190 Ala. 499, 67 So. 395; 111 Ala. 477, 20 So. 428; 74 Ala. 604; 61 Ala. 492. Appellant was entitled to credits for incomes and profits, arising after the mortgagee was put in possession. 42 Ala. 275; 198 Ala. 119, 73 So. 395.
William Cunninghame, of Linden, for appellee.
Each alternative must entitle the plaintiff to the same relief. 3 Brickell, 378. Unless the plaintiff was in possession of the land, he could not remove cloud from title. 145 Ala. 686; 193 Ala. 395, 69 So. 483; 200 Ala. 382, 76 So. 298. The averments of possession are not sufficient. 170 Ala. 362, 54 So. 172. There was no tender, as is required. 19 R. C. L. 515; Jones on Mortgages, § 1095. To avoid usury, the averment must be strict and particular. 61 Ala. 492; 79 Ala. 76; 110 Ala. 294, 18 So. 302; 127 Ala. 103, 28 So. 654. The delivery of the goods and chattels was not a loan or forbearance. Section 4623, Code 1907; 127 Ala. 269, 28 So. 658. No fraud or vitiating fact is averred in the pleading. 181 Ala. 271, 61 So. 804; 113 Ala. 479, 22 So. 288, 59 Am. St. Rep. 129; 77 Ala. 394.
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 the mortgage of usurious interest and to ascertain the amount due thereon.
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 So. 470; Jackson v. Putman, 180 Ala. 39, 60 So. 61; Security Loan Association v. Lake, 69 Ala. 456; Adams v. Sayre, 70 Ala. 318; Presnall v. Burgess Co., 181 Ala. 263, 61 So. 804; Pryor v. Hollinger, 88 Ala. 405, 6 So. 760.
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 So. 483.
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 So. 13.
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.
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 So. 101.
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 extinguishment 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 So. 649; Karter v. Fields, 130 Ala. 430, 30 So. 504.
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 the cause for further proceedings.
Reversed, rendered, and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.