Clark v. Johnson , 133 Ala. 432 ( 1901 )

MoOLELLAN, C. j.

We concur with the chancellor that the averment in the answer, “that said note and mortgage is usurious and void for the interest, and respondents here plead the same,” is wholly insufficient to present the issue of usury vel non to the end of defeating recovery of all interest. — Munter v. Linn, 61 Ala. 492; Security Loan Asso. v. Lake, 69 Ala. 456; Woodall v. Kelly & Co., 85 Ala. 368; Moses Bros. et al. v. Home Building & Loan Asso., 100 Ala. 465.

But where one party alleges and relies upon the status of a bona fide purchaser for value and without notice under a mortgage securing a debt and there is usury in the debt, the facts may be shown against such status without a plea of usury. — Wailes & Co. v. Couch, 75 Ala. 134. In this ease it is clearly shown that the debt secured by the mortgage sought to be foreclosed was tainted with usury; and it follows that the complainant cannot claim as against the title of the heirs of Alex Clark, deceased, that she was a bona fide purchaser for value Avithout notice. — Southern Home Building & Loan Asso. v. Riddle, 129 Ala. 562, and cases there cited.

The chancellor states in his opinion that there Avas no evidence that the deed from C. C. Clark mud wife to Alex Clark was delivered. This is an inadvertence. Both C. C. Clark and Mrs. Orra Clark depose that this deed was delivered to the grantee at the time of its date, and there is no evidence to the contrary. The title to the land covered by this deed is either in Mrs. Orra Clark and any minor children of herself and Alex Clark there may have been at the time of the latter’s death, under the homestead statute — in Avhich case no interest in it passed under complainant’s mortgage — or it was in the heirs of Alex Clark, one of whom was C. C. Clark, and only his individual interest passed by the mortgage to complainant.

There is also error in the decree appealed from, growing out of the disallowance of the items-of twenty-five ($25) dollars and tAventy-three and 15-100 ($23.15) dollars, shown by receipts “E” and “F” attached‘to the deposition of C. C. Clark, as credits on the mortgage debt. The eAddence reasonably satisfies us that these payments Avere made by Clark and received by complainant’s agent on the mortgage debt.

We do not consider the question whether this bill was Avell exhibited and prosecuted by Mrs. D. Jane Johnson as the guardian of her daughters. The point Avas not raised or suggested in any Avay in the chancery court, but, to the contrary, the respondents treated the bill throughout the proceedings in that court as being properly filed by her as such guardian, and they will not be alloAved.to make the objection to her competency for the first time in this court, no substantial rights of either side being dependent upon it.

The decree will be reversed, and the cause will be remanded to the chancery court for further proceedings in acordance with this opinion.

Reversed and remanded.