O. S. Nowell v. Jack Pate

LIVINGSTON, Chief Justice. This is an appeal from a judgment of the Houston Circuit Court, in Equity, sustaining respondent's
demurrer to complainant's substitute bill of complaint. The purpose of the bill was to have a deed declared to be a mortgage.
The bill further prayed for an accounting and that complainant be allowed to pay the amount of the indebtedness still due.
In its judgment on the demurrer, the circuit court held that the bill is without equity and is vague and indefinite. The facts appearing from the substitute bill are as follows: On or about the first of February, 1950, O. S. Nowell borrowed
of the respondent, Jack Pate, the sum of $4,000 with which respondent was to pay a mortgage debt owed by the plaintiff to
the Farmers and Merchants Bank of Ashford, Alabama, which debt was evidenced by a mortgage executed by plaintiff and his wife
to the said bank in April, 1948. On or about the first of February, 1950, the respondent paid off the debt owed to the bank,
and the bank transferred the aforesaid mortgage to respondent. On or about February 10, 1950, plaintiff borrowed from the
respondent the further sum of $500, and on the same date he bought an electric refrigerator from the respondent for the sum
of $390. On the same day, complainant and his wife executed a 'general warranty deed' conveying the land in question to respondent.
Since November 1, 1950, complainant has paid $2,500 to respondent on the debt, and at the time of the filing of the bill the
sum of $4,000 was due and owing on the debt. The complainant has demanded of the respondent an itemized statement of the indebtedness,
but respondent has refused to make such a statement, and claims that he owns the land and that complainant has no right of
redemption in it. Complainant is in possession of the land and has been continuously since the deed was executed, and respondent
has not filed any proceeding in court to gain possession of the land or to foreclose on the mortgage that was assigned to
him by the bank.