NOLEN v. PATTERSON

(77 South. 1000) NOLEN v. PATTERSON. (7 Div. 802.) (Supreme Court of Alabama. Nov. 29, 1917.) Appeal from Chancery Court, Clay County; W. W. Whiteside, Chancellor. Bill by Thomas’ B. Patterson against Mrs. Alice T. Nolen. Decree for complainant, and defendant appeals. Affirmed. The bill in this case was filed by appellee against appellant for the cancellation of a certain mortgage executed by the appellee and.his wife, on March 21, 1905, to secure the sum of $1,060, on certain real estate of which he w'as seized and possessed at the time the bill' was filed, and to enjoin the foreclosure of said mortgage, upon the ground that the same had been fully paid, and further praying to be permitted to redeem from said mortgage, in the event anything should be found due thereon. The complainant paid into court $100, as. in full of the balance due. The chancellor found that the payments made in connection with the $100 deposited in court fully paid the mortgage, and entered a decree granting the relief prayed for in the bill, and respondent prosecutes this appeal. O. B. Cornelius, of Ashland, for appellant. R. G. Rowland, of Ashland, for appellee. [MAJORITY — GARDNER, J.] GARDNER, J. The appeal in this cause presents but a question of fact for determination. It would therefore serve no good purpose to discuss the testimony. Suffice it to say that, after a careful consideration of the evidence here presented, the conclusion has been reached that the chancellor was correct in finding that the recited consideration of the mortgage here involved of $1,080 represented all indebtedness of complainant at the time of its execution, either to complainant or her husband, and, indeed, the respondent admitted in her testimony that such was her understanding. Her testimony further disclosed that she had discussed the question of complainant’s indebtedness with her husband before his death. We also agree with the conclusion that the payments made, including the sum deposited in court, fully discharged the debt. The decree is therefore affirmed. Affirmed. ANDERSON, O. J., and McCLELLAN and SAYRE, JJ., concur.