McCoy v. Wynn , 215 Ala. 172 ( 1926 )

Appellee's motion to dismiss the appeal, because the transcript was not filed in this court within 60 days after taking the appeal, is without merit, and will be overruled. The appeal was taken on February 26, 1925. The first call of the Sixth division thereafter was on April 19th — less than 60 days. The transcript was filed in this court on November 23, 1925, the first day of the ensuing call of that division. This is held to be sufficient. Sloss-Sheffield Steel Iron Co. v. Webster, 183 Ala. 323, 62 So. 764; Cudd v. Reynolds, 186 Ala. 207,65 So. 41; Code 1923, §§ 6107, 6129; Supreme Court practice rule 41.

The equity of the bill rests entirely upon the theory of an accord and satisfaction, by which a mortgage indebtedness of about $1,700 was extinguished by complainant's payment of $1,116.20, pursuant to an agreement with the appellees as owners of the mortgage and notes.

Such a payment, in order to operate as a satisfaction of the entire indebtedness, must have been predicated upon a bona fide dispute as to the amount justly due or upon an independent valuable consideration moving to the payee, or upon a written agreement of discharge, as provided by statute (Code 1923, § 7669), or upon a surrender to the debtor of the written evidence of the debt. Abercrombie v. Goode, 187 Ala. 310,65 So. 816; Ex parte Southern Cotton Oil Co., 207 Ala. 704,93 So. 662; Brown v. Lowndes County, 201 Ala. 437, 78 So. 815. Otherwise the agreement to release the unpaid portion of the debt is but a nudum pactum without any legal effect.

The averments of the amended bill, as also of the original bill, show a sufficient consideration for the release of the interest accrued on the unmatured notes, viz. the payment of those notes in 1921 in advance of their several periods of maturity. The demurrer to the bill for want of equity was therefore properly overruled.

The burden was on complainant to show that the respondents Bright and McCoy made with him the agreement alleged in the bill of complaint, and that the mortgage debt was paid and satisfied by his payment to them of $1,116.20 in that behalf. We have examined the testimony and the documentary evidence with much care, and our clear conclusion is that complainant's contentions are not sustained, and ought to be rejected.

The bill contains a general prayer for relief and a general offer to do equity, but this does not suffice to give it equity and standing as a bill for redemption. Fid. Dep. Co. v. Richeson, 213 Ala. 461, 105 So. 193. It results that the decree of the circuit court granting relief on the original bill, as amended, must be reversed, and a decree be here rendered dismissing the bill.

The trial court erred also in granting relief to the respondent U. G. Jones on his cross-bill against Bright and McCoy. The theory that the mortgage was discharged by an accord and satisfaction of the mortgage debt is not sustained, and no other theory of relief is available. The mere parol consent by Fields, the original mortgagee, to the sale by the complainant mortgagor of the 80 acres of mortgaged land now claimed by Jones did not, in the absence of an equitable estoppel (and none such appears), bind even Fields to release that land from the lien of the mortgage. A fortiori, it could not bind his transferees, who had no notice of such an agreement.

Nor is the doctrine of equity that, where parcels of mortgaged property have been successively alienated by the mortgagor, they will be subjected to the payment of the mortgage debt in the inverse order of their alienation, to the exoneration if possible of the parcels first conveyed, applicable to a release by the mortgagee of a part of the mortgaged property to the mortgagor.

The evidence shows that Bright and McCoy released 120 acres of the mortgaged land from the mortgage, in order that the mortgagor Wynn might procure upon it a loan of $1,200 to pay on the mortgage debt. Conceding, for the argument, that both Bright and his collateral transferee, McCoy, knew that Wynn had sold and conveyed the remaining 80 acres of the mortgaged land to third parties, this did not impair their right to enforce the mortgage against the parcels previously alienated, but still subject to the mortgage. As said by this court in Heirs of Holman v. Bank of Norfolk, 12 Ala. 369, 426:

"The mortgagee having lent his money, and taken a mortgage on land, may, if he thinks proper, release the whole, or any portion of it, to the mortgagor, or to a purchaser from him. What right has a purchaser from the mortgagor, of a portion of the land, to interfere in this matter? Between him and the mortgagee there is no privity, either in estate or in law, and as he purchased with knowledge, that all and every part of the estate was liable to the payment of the mortgage debt, he cannot complain when it is enforced. If the mortgagee should collude with an insolvent mortgagor, to make the entire loss fall on a particular purchaser, equity might afford relief on the ground of fraud; but that is neither alleged nor proved, and it is impossible, that an equity can grow up in favor of a stranger, from the exercise of an undoubted right."

Upon these considerations, the decree granting relief to Jones must be reversed, and a decree will be here rendered denying that relief, and dismissing his cross-bill.

Reversed and rendered.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.