Liddell & Co. v. Carson , 122 Ala. 518 ( 1898 )

HARALSON, J.

— 1. The primary object of this bill is not to redeem the lands sold under foreclosure by dis-affirming the foreclosure because the mortgagee purchased at his own sale, without power in the mortgage authorizing him to do so. Its gravamen, as evidenced by its allegations and prayer is, to have the sale set aside on the alleged grounds, that Liddell & Co., who owned the mortgage by transfer and assignmnet, had no right to foreclose it and become the purchasers at the foreclosure sale, for the reason that the mortgage debt had been fully paid, and no right of foreclosure existed. The complainants ask for an account to be taken, — employing the language of the prayer, — “to ascertain whether or not anything is due on said mortgage, and if your Honor find that said mortgage has been fully paid by orators, and was paid before said mortgage sale, then your orators pray that your Honor will cancel said mortgage, and that the deed executed by William Henderson and John R. Liddell, (who composed the firm of Liddell & Co.) to Sam Jones and attached to this bill of complaint and marked exhibit I), and the deed executed by J. R. Liddell & Co. to Fred. Savage and the deed executed by Fred. Savage to J. R. Liddell & Co., may each and all be cancelled and set aside by decree of your Honor as a cloud upon orators’ title.” If the account prayed were granted, and the fact should appear on a statement thereof, that said mortgage had been fully paid and discharged before the alleged attempted foreclosure of the same, and, on that account, the mortgage itself, the deed of Liddell & Co. to Savage and Savage’s to them, and the deed of Liddell & Co. to Sam J ones were each cancelled and held for naught, then complainants would stand as the undisputed owners of the land under their deed from James Bond, unaffected by any of said conveyances as a cloud on their title. But, the prayer Avent further, as it Avas proper for it to do, and prayed in the alternate, that if the court should find that the mortgage debt had not been j)aid in full, then that the balance remaining due should be ascertained, and complainants alloAved to redeem the lands, by paying the balance, Avhich they declared their Avillingness and readiness to do. The matter of redemption is incidental to the main purposes of the bill. Upon the allegations and prayer, the bill comes safely AA’ithin established equitable principles. If a mortgagee sells the property after the debts have been satisfied, he thereby offends the equitable rights of the mortgagor, which a court of equity AAdll intervene to protect, by vacating the sale. — Askew v. Sanders, 84 Ala. 356; Garland v. Watson, 74 Ala. 323.

2. Nick Rivers was made a party defendant by amendment, after the bill Avas filed, by striking out Aiken’s name and adding his. It is insisted on demurrer, that the right to redeem as to Rivers Avas barred, since more than íavo years had elapsed since the foreclosure, before the bill was filed. As we have shoAvn, this is not properly speaking a bill to redeem, but one to set aside a mortgage and the sale thereunder, because it had been satisfied, and no longer remained a lien on the property mentioned in it. It Avas said in Askew v. Sanders, supra, “The limitation which bars the right of relief in such case, is the same Avithin which an action for the recovery of lands may be brought, — ten years.” So, if said Livers was properly made a party complainant under such a bill as this, the prima facie bar of two years, would be overcome as inequitable and unjust.— Ezzell v. Watson, 83 Ala. 120; Askew v. Sanders, supra.

3. There is nothing in those grounds of demurrer, that question the equity of the bill for that it does not aver that complainants are in the rightful possession of the lands, since these objections in that particular proceed upon a contradiction of the plain averments of the bill. The objections are predicated upon the theory that the bill is one for removing a cloud on title. For such’ purpose, the averments of possession as made in its 15th paragraph are ample.

4. Nor are the grounds questioning the equity of the bill because Robin Dennis is not made a party defendant of any avail. It is shown he has no interest in the litigation. His tract of eighty-four and one-half acres of land was not sold by defendants in their attempted foreclosure sale, but was omitted therefrom, for the reason as stated in the bill, that the same had been sold to him by complainants, title made to him by them with the concurrence of Liddell & Oo. and the purchase money paid to them, to go to the satisfaction of the mortgage, “should anything be due thereon.”

5. We need not decide whether the record of the deed by James Bond to complainants, and of the mortgage to him from them, operated notice to Sam Jones,— to whom, after the alleged foreclosure, Liddell & Co. con- ■ veyed 450 acres of the mortgaged lands, — so that he could not plead that he was a bona fide purchaser; for, if these recorded instruments did not operate notice to him, it was unnecessary for the bill to allege that he was not a bona fide, purchaser. That is a defense which it was his province to set up and prove. — Hooper v. Strahan, 71 Ala. 75; May v. Wilkinson, 76 Ala. 543; Wood v. Holly M. Co., 100 Ala. 350.

6. The bill was amended by adding the name of Nick Rivers as a party complainant, without stating his age or residence. An infant is incapable, by himself, of exhibiting a bill, as well on account of his supposed want of discretion, as of Ms inability to defend Mmself, and to make liimself liable to the costs of the suit. — Story’s Eq. Pl., § 57. If the incapacity to sue, arising from infancy or other cause, does not appear, however, on the face of the bill, the defendant must take advantage of it by plea; but, if the incapacity appears on the face of it, he may demur.- — Story Eq. Pl., § § 493, 494, 722; Nelms v. E. A. L. M. Co., 92 Ala. 162. Rivers’ incapacity from infancy did not appear in the bill, and the defendant demurred. He should have pleaded, if he intended to raise his incapacity from infancy. It cannot be doubted, that the better practice in equity courts is not only to give the names and ages of the several plaintiffs, — whether they are under or over twenty-one years, — but their residence as well. As to their residence, Daniel states the rule thus: “It is not only necessary that the names of the several plaintiffs in a bill should be correctly stated, but the description and place of abode of each plaintiff must be set out, in order that the court and the defendants may know where to resort to compel obedience to any order or process of the court, and particularly for the payment of any costs which may be awarded against the plaintiffs, or to punish any improper conduct in the course of the suit.” — 1 Dan. Ch. Pl. & Pr. (6th Am. ed), '"357. To the same effect is Story on Eq. Pl., § 26.

For this defect in the bill the demurrer should have been sustained.

The decree of the court is reversed and one will be here rendered sustaining the demurrer to the bill for the defect pointed out, and allowing the complainants thirty days within which to amend their bill.

Reversed and rendered.