Knox v. Nall , 80 Ala. 347 ( 1885 )

STONE, C. J.

The present bill was filed by appellees to redeem mortgaged real estate, and sets up usury in the debt secured, in part reduction of the amount claimed by the mortgagee. What is known as the new Central warehouse was one of the pieces of property specified and conveyed in the mortgage. By private agreement, that piece of property was sold and conveyed by the mortgagors to one of the mortgagees, Knox, in consideration of a credit of six thousand eight hundred and ninety-five and 95-100 dollars, to be entered on the mortgage debt. Taking the debt at its face value, and allowing this credit upon it, there would remain due and unpaid of the mortgage liability twenty-three hundred and fifty dollars. The answer admits the usury as charged, and hence there is no controversy as to the amount of unlawful interest embraced in the note and mortgage. The real and only contention in this case is, that inasmuch as this portion of the debt was paid in property, upon an agreement to enter, in consideration thereof, the stipulated credit on the debt, it must be treated, not as a sale of the warehouse at an agreed price, but as an exchange of one for the othér in the condition in which they theu stood ; and that if the debt is reduced by the elimination of the usurious interest, this will lead only to a corresponding reduction in the estimated value, or purchase-price of the warehouse. The register, in stating the account, ruled against defendants on the question above presented, and they filed exceptions to his report, as follows:

“ First. — They except to so much of the register’s report as allows complainants a credit of six thousand eight hundred and ninety-five and 95-100 dollars, proceeds of the new Central warehouse:

“Second. — Except to so much of the register’s report as shows a balance due on respondents’ note and mortgage of [only ?] seven hundred and sixty-five and 78-100 dollars.” The chancellor overruled the exceptions, and confirmed the report.

In the note, referring to the testimony relied on in support of the said exceptions, is the following language: “ Respondents rely on * * so much of the deed executed by complainants to C. J. ICnox, which recites the consideration of six thousand dollars as the amount paid for the new Central warehouse.” That deed is not in the record, and it is nowhere shown that it was offered in evidence. There is no note of the testimony that was submitted to the chancellor, when he made the decree of reference. We are thus left, so far as this question is concerned, to the testimony of O. J. Knox and J. P. Nall, for no other witness sheds any light on it.

There is no averment in the pleadings, nor is there any testimony, tending to show the money value of the new Central warehouse, other than the agreed sum. for which credit was allowed for it. We have no data for affirming its value was less than that. And scrutinizing the testimony fro and oon, we do not find it satisfactorily proved, that there was any agreement, express or implied, that the transaction was other than it appears on its face to have been — a purchase of the warehouse at the agreed price and value of six thousand eight hundred and ninety-five and 95-100 dollars. It results that we are not clearly convinced the chancellor erred, and his decree must be affirmed.