Caldwell v. Caldwell

52 So. 323, 166 Ala. 406, 1910 Ala. LEXIS 350

• Court: Supreme Court of Alabama
• Decided: April 12, 1910
• Status: Published

Opinion

SAYRE, J.

This is a case in which the complainant •sought to enjoin the foreclosure of a mortgage under a power of sale in order that he might have the benefit of the set-off of an unliquidated demand against the mortgagee, and is to be settled upon familiar principles of equity jurisdiction. Complainant and defendant are brother and sister, living under the same roof on the mortgaged property, and some ethical reasons are suggested which possibly ought to have consideration by the complainant before a foreclosure is insisted on, but there is no showing of grounds for interference cognizable in a court of chancery. Equity will enjoin an attempt to pervert a power of sale from its legitimate purpose.—Sturve v. Childs, 63 Ala. 473. But it must have substantial reasons for so doing. The interests of •society require that such power be not interfered with lightly. It results from contract between the parties, and the party who borrows must consider when he bargains whether he is not giving too large a power to him with whom he is dealing.—Jones v. Matthie, 11 Jur. 504. The jurisdiction will be exercised only when, because of fraud, or a want or illegality of consideration, or for other sufficient reasons, the enforcement of the ■collection is against good conscience, and would work great and irreparable injury. So the rule is stated in Glover v. Hembree, 82 Ala. 324, 8 South. 251, and in Vaughan v. Marable, 64 Ala. 60.

There is no allegation of the defendant’s insolvency. In fact, the contrary appears. If it should be assumed that for years the defendant has lived with the complainant under circumstances which would imply a promise to pay her for board — as to the merit of which suggestion we intend no intimation — that demand isunascertained, has no agreed relation with the mortgage debt, and in the absence of allegation of defendant’s insolvency, or other special equity, the power of sale will not be enjoined in order to enable the mortgagor to establish a set-off against the mortgage debt.—Glover v. Hembree, supra. The mere existence of a legal demand against the mortgagee will not justify interference.—Gafford v. Proskauer, 59 Ala. 264; Knight v. Drane, 77 Ala. 371. And it would hardly seem necessary to say that defendant’s refusal to accept a conveyance of the property in full discharge of the debt arms complainant with no special equity. Defendant is-entitled in equity as at law to have her money.

Por the reasons and on the authorities noted, we concur in the chancellor’s opinion that there is no equity in the bill, and his decree dismissing the same on general demurrer will be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.