Counsel for appellees lay much stress upon the maxim "he who seeks equity must do equity," and insists the opinion rendered in this case ignores that salutary principle. This Court has consistently recognized and enforced this maxim. Perhaps the case of Interstate Trust Banking Co. v. National Stockyards National Bank, 200 Ala. 424, 76 So. 356, (with which the writer is most familiar) presents one of the strongest illustrations of the application of this just principle.
But we find no averment or indication in the pleadings, either the bill or amendment, calling for the application of this maxim. The answer merely makes mention of the two notes executed subsequent to the mortgage and the recitals therein, — that and nothing more. Whether money was obtained at the time upon consideration of the execution of these notes secured by the $1,000.00 mortgage, is left wholly in conjecture, both by the pleadings and the proof.
Indeed, a reading of the record would indicate the case was tried, not upon the theory of any such maxim, but upon the theory of an agreement of the mortgagor and the mortgagee that the security of the mortgage would be extended to embrace these subsequent notes.
Our case of Hanchey v. Powell, 171 Ala. 597, 55 So. 97, appears to be in accord with the weight of authority that such extension may not be made by mere oral agreement. 76 A.L.R. p. 579.
The opinion of Justice Thomas sufficiently disposes of the case of McWhorter v. Tyson, 203 Ala. 509, 83 So. 330, stressed by appellees, and no further comment is necessary.
The recitals in the subsequent notes are ambiguous, and may be aided by proof such as is admissible in other ambiguous contracts. We have held the proof here presented is insufficient to this end, and adhere to that conclusion.
Moreover, if this real estate constituted a homestead, as contended in brief, but not clearly appearing in the proof, then the concurrence of the wife would be necessary to the validity of any such extension agreement. Dunn v. Buckley,56 Wis. 190, 14 N.W. 67; 76 A.L.R. p. 591.
Under the evidence before us, therefore, the decree was erroneous in that it included as a part of the mortgage indebtedness these two subsequently executed notes.
In view of a retrial of the cause, some comment is proper as to the claim of complainant for compensation for services rendered the holders of this mortgage. The chancellor is correct in the statement of the legal principle that a mortgagor, in the absence of a showing of insolvency or other equitable grounds, may not be permitted to set off a mere legal demand against the mortgage indebtedness. Knight v. Drane,77 Ala. 371; Caldwell v. Caldwell, 166 Ala. 406, 52 So. 323, 139 Am. St. Rep. 48.
If, however, it appears there was an agreement that the value of his services should be credited the mortgagor upon the mortgage indebtedness, then it may be so applied, just as any other payment. Though complainant's testimony is meager in this respect, yet some of it did so indicate, particularly where he states, as to the conversation concerning these services and charges therefor, "I owed her and I'd take credit for it." The real value of these services does not appear to be very well established *Page 224 by the evidence before us. There is much detail of proof which might well have been omitted and embraced within more general terms.
It is suggested the decree be modified by eliminating the indebtedness as evidenced by the two subsequent notes and as modified affirmed. This is a matter that is addressed to the court's sound discretion. But in view of the situation, as disclosed by the record, we conclude the ends of justice call for a reversal and remandment of the cause.
I concur in the result therefore for the reasons above indicated.