This case is before us for reconsideration after rehearing granted and re-argument had.
We now reaffirm the enunciations of law applicable to this case as expressed in majority opinion filed herein on March 31, 1936.
There is a phase of the case, however, upon which neither the Master nor the Chancellor appears to have made a definite finding of fact and which finding may be controlling in the result of this litigation.
It is contended by the appellee that before appellee acquired the note and mortgage which is the subject of this suit, her representative interviewed the maker of the mortgage and note, Hugo C. Enstrom, and advised Mr. Enstrom that his client, Frances L. Dunning, was contemplating acquiring the note and mortgage in settlement of a part of her interest in the estate of Mathilde J. Ellinger, deceased, and who was the grantee and payee of the mortgage and note, but, before doing so, wished to know whether or not the note and mortgage were good and valid obligations and that thereupon the maker of said note and the grantor who executed the said mortgage advised the representative and agent of the said Frances L. Dunning that the mortgage was a "bang-up" mortgage, meaning that same was a valid mortgage.
The appellant contends that this condition did not exist and that such representation was not made by Mr. Enstrom to the representative of Frances L. Dunning.
If such representation was made, or if it should be found as a matter of fact that after the death of Mrs. Ellinger and before Mrs. Dunning acquired the note and mortgage, Mr. Enstrom made payments of principal or interest, or both, to apply on said obligations, without questioning or *Page 578 challenging the validity of the note and mortgage, thereby treating them as valid and binding obligations and thereby causing Mrs. Dunning to believe them to be good and valid obligations, and thereby influencing her to take and adopt the same for value as a part of what was due her from the estate of Mrs. Ellinger, then Enstrom was estopped thereby from setting up the defense of usury as against the note and mortgage here involved. Therefore, the judgment of reversal heretofore entered is now modified to the extent that the decree appealed from is reversed without prejudice for the Chancellor to recommit the cause to the Master and require him to make report of his findings on the question hereinabove referred to and thereupon the Chancellor to reconsider the record in connection with the report of the Master in this regard and make his findings as to the truth in this regard and to enter such decree as he shall thereupon find to be in accordance with the law and the facts.
It is so ordered.
Reversed and remanded for further consideration.
WHITFIELD, C.J., and TERRELL, BUFORD, and DAVIS, J.J., concur.
ELLIS, P.J., and BROWN, J., dissent.