Long v. Powell

MAYFIELD, J. —

This is a bill by appellant to cancel a mortgage on tbe ground of want of consideration or failure of consideration. Tbe mortgage was executed by appellant while in jail under several criminal charges. He claims that the mortgage was executed to bis attorney as indemnity, merely for 'procuring an appearance bond so that appellant could be released from jail, and that no sucb appearance bond was ever executed. Tbe mortgage, on its face, bas no mention or reference to any sucb condition, but recites that it was given to secure the payment of money, and there is no writing to show any sucb condition.

Tbe mortgagee claims that tbe mortgage was executed to secure tbe mortgagee for money due him from tbe mortgagor, for attorney’s fees due and to become due, for defending tbe mortgagor in tbe prosecution against him for violation of tbe criminal laws of the state. Tbe mortgagee was corroborated by two other witnesses, as to material parts of bis evidence. Aside from this, tbe mortgage itself was in accordance with bis theory of tbe case. It is true that tbe mortgagor was in jail when be executed tbe mortgage, and executed it to bis attorney, and this, of course, did cast on tbe mortgagee tbe burden of showing the good faith of tbe transaction, and that no fraud or undue influence was practiced upon tbe mortgagor. We think tbe mortgagee bas met the burden, and we agree with the trial court that tbe complainant was not entitled to tbe relief prayed.

Tbe decree appealed from must be affirmed.

Affirmed.

Anderson, C. J., and Somerville and Thomas, JJ., concur.