67 So. 426 | Ala. | 1914
The facts upon which the complainant rested his right to relief in this case were stated by him in his bill of complaint as amended, as follows:
Second. That on July 5, 1910, in order to secure the above indebtedness, the said Lizzie S'. Arnett and her husband, H. B. Arnett, executed and delivered to the said Willoughby a mortgage on certain real estate of said Lizzie S. Arnett which is described in the bill.
Third. That in July, 1911, the second, in the series ■of notes secured by said mortgage, became due, and that the complainant, at the request of the mortgagors and under an agreement with them that complainant should succeed to the lien of said mortgage for his reimbursement, paid to the said John P. Willoughby, or to some one for him, the amount then due on said note, to wit, $428, and that the said note, indorsed in blank by the said Wilioughby, was assigned by delivery to complainant or to some one for him, and that the said mortgagors gave to complainant their note, due one year after date, for said sum, with the said mortgage notes attached thereto as collateral security.
Fourth. That on January 1, 1912, the third note in said series of notes .secured by said mortgage became •due, and that complainant, at the request of said mortgagors and under an agreement with them that he ■should succeed to the lien of said mortgage for his re
Fifth. That on the 1st day of July, 1913, the sixth note in the series of notes secured by said mortgage became due, and that on November 17, 1913, there remained unpaid on said note $200; that S. E. Thompson, at the request of the mortgagors, paid to the said Pauline P. Willoughby the said sum of $200; that the said note Avas assigned to him, or to some one for him, by the said Pauline P. Willoughby by delivery; that said mortgagors executed and delivered to said S. -E. Thompson their two notes for $100 each, with said mortgage note as collateral security therefor, and that before the filing of this bill complainant paid to the said S. E. Thompson the amount due on said note, under an agreement Avith the mortgagors that complainant should succeed to the lien of the mortgage for his reimbursement, and that said Thompson assigned by delivery to complainant, or to some other person for him, the said notes so given to him by said mortgagors Avith said mortgage note as collateral security; that none of the indebtedness evidenced by the notes above referred to as being the property of the complainant has ever been paid.
Sixth. That, subsquent to the execution and delivery of the above-described mortgage, the said Lizzie S. Arnett and her husband, H. B. Arnett, executed and
Seventh. Complainant alleges in his bill that the mortgage which Kyser transferred to the Jefferson County Savings Bank was fully paid before the property was sold under the mortgage; and the bill alleges that said mortgage was given by Lizzie S. Arnett to secure an indebtedness of her husband, and not to secure her own debt, and that the Jefferson County Savings Bank well knew these facts when it acquired said mortgage from Kyser.
Eighth. Complainant claims that he is entitled to have the amount due him on account of the Willoughby mortgage notes above referred to, including a reasonable attorney’s fee for collecting the same, as well as the amount still due to Pauline P. Willoughby from said mortgagors, Lizzie S. Arnett and H. B. Arnett, ascertained; and said mortgage foreclosed. Complainant also claims that he is entitled to be first paid, out of the proceeds of said sale, the amount which it is ascertained is due him on account of the above transactions.
Complainant further prays that the Kyser mortgage and note, and the sale had thereunder, be declared null and void.
Under tbe allegations of this bill, all of tbe parties to tbe bill except Kyser are proper parties to tbe bill. Kyser, so tbe bill as amended alleges, has no interest to be affected by tbe bill, and in so far as be is concerned tbe bill is without equity.- — Doe ex dem. Duval’s Heirs v. McLoskey, 1 Ala. 708.
In this case the interest of the complainant can be conserved, and Mrs. Willoughby at the same time not disturbed as to the notes secured by the mortgage which are not due, by a foreclosure of the mortgage as to all
The allegations of the bill as amended do> not bring the complainant within the reason of the rule declared in Evans v. Faircloth-Byrd Mercantile Co., supra. In so far as the complainant’s rights as sho-Avn by the bill as amended are concerned, it does not matter to him whether the mortgage to Kyser was or was not null and void, and it does not matter to him whether the sale of the lands under the power contained in the second mortgage was or was not void. The complainant, in his bill as amended, shows that his claim upon the land is superior to the claims which are being made to it
In the opinion filed with his decree sustaining the demurrer to the original bill, the chancellor states that the demurrer of the respondent Kyser “is sustained upon the grounds of multifariousness and want of equity, and the demurrers of the other respondents are sustained upon the ground of multifariousness.” The decree sustaining the demurrers to the bill of complaint as amended is simply a decree sustaining the demurrers, but there is no opinion accompanying this latter decree. We presume that the chancellor sustained the demurrers to the bill as amended for the same reasons that he sustained the demurrers to the original bill; but, however this may be, we are of the opinion that the bill as amended is wanting in equity as to Kyser and that it is multifarious. The bill can, however, if amended to meet the views expressed in the above opinion, be rendered free from attack by demurrer.
The decree of the chancellor sustaining the demurrer to the bill as amended is affirmed. The appellant is given 30 days within which to amend his bill as amended, so as to meet the views above expressed.
Affirmed.