Knight v. Drane
Supreme Court of Alabama
Bill in Equity by Mortgagor, to enjoin Sale under Mortgage, and to establish Equitable Set-off. Appeal from the Chancery Court of Lowndes. Heard before the Hon. John A. Foster.
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Bill in Equity by Mortgagor, to enjoin Sale under Mortgage, and to establish Equitable Set-off. Appeal from the Chancery Court of Lowndes. Heard before the Hon. John A. Foster. The bill in this case was filed on the 20th June, 1884, by C. W. Knight,, against W. W. Drane, as the administrator of the estate of Mrs. Mary A. Harrell, deceased ; and sought to enjoin a sale of certain lands, under a power contained in a mortgage, and to establish a set-off against the mortgage debt. The mortgage, a copy of which was made an exhibit to the bill, was dated September 8th, 1883, and conveyed an…
1Opinion of the CourtClopton, J.
We concur with the chancellor, that the bill is without equity. The right of the mortgagor to set off the mortgage debt by a debt or demand due him by the mortgagee, in equity, depends, in some cases, on which party resorts to equity. When the mortgagee brings a bill in equity for the foreclosure of the mortgage, the mortgagor may set up any defense*- other than the statute of limitations, which would avail in an action at law on the debt, and hence may, in reduction or extinguishment of the mortgage debt, set off any debt or demand that would be available at law. It is, however, well…
2Cases cited1 opinion
- Gafford v. Proskauer & Co.Supreme Court of Alabama · 1877
3Cited by11 opinions
- Conner & Wife v. SmithSupreme Court of Alabama · 1889
- Brown v. BellSupreme Court of Alabama · 1921
- Caldwell v. CaldwellSupreme Court of Alabama · 1910
- Samuels v. ScottSupreme Court of Alabama · 1925
- Howe v. RobertsSupreme Court of Alabama · 1923
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