Birmingham Lot Co. v. Taylor

ANDERSON, J.

This bill was filed to cancel a certain mortgage held by the respondent which was made by the complainant to secure a fee due the firm of Stallings & Drennen for services rendered by J. F. Stallings in the defense of the mortgagor’s son, tvlio was tried for murder in the state of Georgia. While the note and mortgage unqualifiedly and unconditionally provide for the payment of $1,000, the complainant claims that she does not owe said sum and only owes the actual expense incurred by the said Stallings in and about the defense of her son. The complainant claims that said Stallings agreed to take the case for a contingent fee (that is, to charge $1,000 if he succeeded in getting her son acquitted), and that she was to pay him only his actual expenses in the event her son was convicted. That her son was convicted and she did not therefore owe said Stallings said fee of $1,000 or any other fee, but merely owed him what he may have expended by way of actual expenses in looking after the case. The complainant also charges that she did not read the papers before executing them and relied upon the representation of the mortgagees to the effect that said papers set up the contract as she understood it and as actually made.

The burden of proof was on the complainant to establish a different contract from the one set up in the note and mortgage and to show that she had been fraudulently induced to sign said papers.

She not only failed to carry this burden but the weight of the evidence was against her theory of the transaction and showed that the obligation to pay the fee was not contingent upon the acquittal of her son. Indeed, complainant’s letters, written several months after thé trial and conviction of her son, indicate very strongly that she recognized that the obligation to pay the fee was not canceled by the conviction of her son, especially the letter marked Exhibit B, which will be set out by the reporter.

Neither version of the transaction authorized such a decree as was made by the trial court in fixing the fee at $500, and its holding that the mortgage was a valid security for same, as the complainant either owed $1,000 or she did not owe any fee at all but merely owed the actual expenses incurred by said Stallings. The present decree made a new contract for the parties and a totally different one from the contention of either of them.

The decree of the law and equity court is reversed, and one is here rendered holding that the mortgage is valid' as security for $1,000, the amount therein expressed, and the cause is remanded in order that the complainant may be given a reasonable time to comply, with her prayer in the alternative of being permitted to pay. what is due on the mortgage and having the same satisfied.

Reversed, rendered and remanded.

Mayfield, Sayre, Somerville, and de G-raffenried, JJ., concur.