The appellants insist that, notwithstanding the failure in their proof to show that the mortgage debt was tainted with usury, they were entitled to have the amount due on the mortgage ascertained by the court, or on reference to the register. The fault in the appellants' insistence is that the bill presents the case in the single aspect — that because of the alleged usury there was a dispute between the parties as to the amount of complainants' liability.
Pretermitting the question of usury, there appears no substantial dispute between the parties as to the amount due on the mortgage, and there is an absence of averment or proof showing a request by the complainants for a statement of the amount due, and a refusal on the part of defendant to furnish such statement, or a tender or offer to pay the amount admitted to be due, and a refusal to accept such tender, or that there was any threatened abuse or perversion of the power of sale.
The filing of a bill by the mortgagor in possession to protect and enforce his equity of redemption is a restriction on the right of the mortgagee to exercise the power of sale, and subjects a foreclosure thereunder, pending the suit, to avoidance in the event the complainant prevails. Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Thompson v. Atchley,201 Ala. 398, 78 So. 196; Fair v. Cummings, 197 Ala. 131,72 So. 389; Burns v. Mtg. Bond Co. of N.Y., 199 Ala. 77, 73 So. 987.
While a tender of the amount which the complainants conceive to be due on the mortgage debt is not essential to the equity of the bill, the failure to make such tender being material only as affecting the costs, yet to justify the interference of a court of equity with the exercise of power of sale the averments of the bill must present some juristic question, such as that the mortgagee refused to accept payment of the mortgage debt when tendered, or by interposing groundless objections to a redemption has forced the mortgagor to resort to the proceeding to protect his right, or that the mortgagee is attempting to pervert the power of sale from its legitimate purpose and use it to oppress the mortgagor, or that there is a dispute between the parties as to the amount due on the mortgage, which prevents complainants from discharging it. McGuire v. Van Pelt et al., 55 Ala. 344; Struve v. Childs,63 Ala. 473; Security Loan Ass'n v. Lake, 69 Ala. 456; McCalley v. Otey, 90 Ala. 302, 8 So. 157; Wittmeier v. Tidwell, 147 Ala. 354,40 So. 963; 2 Jones on Mtgs. § 1095.
Before the enactment of the statute now found in section 9026 of the Code of 1923, providing that "the payment of the mortgage debt, whether the mortgage is of real or personal property, divests the title passing by the mortgage," and which first appeared in the Code of 1886, there was a reason for filing a bill to redeem — to divest the title, which had become absolute by the default of the *Page 174 mortgagor, out of the mortgagee and invest it in the mortgagor — but now the statute accomplishes this when the debt is paid, without a decree of court.
In Johnson v. Smith, 190 Ala. 522, 67 So. 401, cited by appellants, it was shown by the averments of the bill that Johnson, after the death of complainant's husband, took possession of a mule and wagon belonging to Smith, and also a large quantity of cotton and other agricultural products covered by the mortgage, which were sufficient in value to pay off the mortgage debt, and that, when request was made by complainants for a statement of the amount due on the mortgage and the credits which had been made, the defendant refused to furnish such statement, and threatened to foreclose, and advertised the property for sale.
The only controversy between the parties, as presented by the pleadings and proof, was determined by the trial court against the appellant, and the bill was dismissed, and the writer is of the opinion that the decree was properly affirmed.
ANDERSON, C. J., and SAYRE, SOMERVILLE, GARDNER, THOMAS, and BOULDIN, JJ., hold that, notwithstanding complainants' failure to show usury, the offer in the bill to pay any balance found to be due gave the bill equity, and complainants were entitled to have the amount due on the mortgage debt ascertained, and an opportunity to redeem by payment of the debt so found to be due and the costs, and that the circuit court erred in dismissing the bill.
The rehearing is therefore granted, the decree of the circuit court is reversed, and the cause is remanded.
BROWN, J., dissents.