| Ala. | Apr 16, 1914
This is a different bill, though the case presented is much the same as that considered in Sadler v. Jefferson, 143 Ala. 669" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/sadler-v-jefferson-7361566?utm_source=webapp" opinion_id="7361566">143 Ala. 669, 39 South. 380, wherein the effort on the part of complainants was to assert the rights alleged in the present bill. We may assume that the bill in that case has been abandoned, and that now complainant seeks to renew the controversy on terms of better advantage. We will not gu over again the ground covered by the opinion in that case. There are some difference which may be roughly stated as follows: This bill is filed by Jefferson in his sole name and for his sole benefit, his tenant in common, Swayne, having dropped out of the case. The averment now is that C. B. Bailey has conveyed his interest in the land to his wife, Annie D. Bailey, she assuming her husband’s debt to the British & American Mortgage Company, and she, along with her husband, is now made a party defendant. It is further averred that W. E. Bailey, at the request of Annie D., has paid to the mortgage company the debt secured by its mortgage; and the bill here, omitting the mortgage company as a party defendant, seems to make W. E. Bailey, as assignee of the mortgagee com
Swayne is not a necessary party to his cotenant’s bill to redeem.—McQueen v. Whetstone, 127 Ala. 417" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/mcqueen-v-whetstone-6518743?utm_source=webapp" opinion_id="6518743">127 Ala. 417, 30 South. 548.
Nor is Sadler a necessary party, he having parted with his interest.—Raisin Fertilizer Co. v. Bell, 107 Ala. 261" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/raisin-fertilizer-co-v-bell-6516173?utm_source=webapp" opinion_id="6516173">107 Ala. 261, 18 South. 168.
There has been no foreclosure of complainant’s mortgage to Sadler. The bill avers that down to and including the year 1905 — that is, within eight years of the filing of the present bill — complainant has made annual payments under an agreement with Sadler, subsequently acquiesced in and acted upon by his successors in interest, which agreement, in legal effect, amounted to a mere “method of adjustment by which the mortgage debt was to be paid.”—Sadler v. Jefferson, supra. Meantime, unless, indeed, the mortgage debt has been satisfied by these payments and other credits to which complainant avers he is justly entitled, nothing has occurred to affect the reciprocal equitable rights, of the parties, the right of defendants to foreclose, the right of complainant to redeem.
During a part of the time, it is true, defendants have been in possession of a part of the land. But the bill seems to mean that complainant is now in possession of the entire tract, and, however- that may be, the aver
We do not find that other suggestions contained in appellants’ demurrer have merit or require special treatment, and the chancellor’s decree overruling the demurrer will be affirmed.
Affirmed.