99 Ala. 607 | Ala. | 1892
This bill is filed by B.E. Bolling & Son against W. H. Cook, B. B. Pace and N. A. Pace, bis wife,
Only Rufus Cook made defense to the bill. He answered admitting its averments as to the sale and conveyance by W. H. Cook to Pace, the mortgage by Pace and wife to said W. H. Cook to secure the purchase money, but denying “the amount [averment?] of a transfer of said mortgage to complainants by defendant Wm. H. Cook.” Continuing, he answers that it is true that he sets up a claim to the lands described in said mortgage, but that his claim and title to said land is not pretended, and that it is not subordinate to the right and claim of complainants, but that at the date of the pretended sale by W. H. Cook to Pace, said Cook did not have the legal title to said land, or the right to sell the same to Pace, or any one else, but that the legal title at the time of said sale and at the time of the execution of the mortgage by Pace “was in one Jacques Loeb, conveyed by Jefferson Cook and Martha Cook by mortgage deed executed on
The evidence on which the case was submitted, aside from the exhibits to the bill and answer and proof of the execution of the deed by Tranum to Bufus Cook, consisted of the pleadings, exhibits, depositions, orders, reports on reference, decrees, &c. — the whole file and record — in another case, that of B. E. Bolling & Son against W. H., Bufus, Jefferson and Martha Cook, and W. T. Tranum, which had been prosecuted and determined in the Chancery Court of Crenshaw County. This bill had two main purposes. W. H. Cook and Jefferson Cook had executed to Bolling & Son a note evidencing indebtedness which was originally due in part from Jefferson Cook, and in other part from W. H. and Bufus Cook, composing a partnership. To secure its payment W. H. Cook executed a mortgage to Bolling & Son. Subsequently, it seems, Jefferson Cook claimed- that the property embraced in this mortgage, or a part of it, did not belong to W. H., but to himself, Jefferson Cook. The bill sought a foreclosure of the mortgage and to subject any title Jefferson had in the property to the payment of the debt secured by it, on the theory that the latter had induced Bolling & Son to take the mortgage by representing the title of the property to be in W. H. Cook, thereby estopping himself to afterwards- assert the contrary. Beyond this, the bill sought to set aside as fraudulent a certain conveyance made by Jefferson Cook and Martha Cook, his wife, to said Tranum, and to subject the property embraced therein to' the satisfaction of the note made by W. H. and Jefferson Cook to the complainants. The bill alleges that to further secure the debts evidenced by said note, W.-H. Cook transferred and assigned to Bolling & Son the Pace note and mortgage, which are described and made exhibits. And the mortgage before referred to of W. H. Cook, which is made an exhibit ’
Bufus Cook having thus at law tbe legal title to tbe land in controversy, paramount to tbe title of complainants under tbe mortgage, and in equity tbe older and superior mortgage, should not’ have been made a defendant to tbe present tbe bill. Tbis is not tbe proceeding in wbicb to determine and have settled tbe absolute final title to mortgaged realty. Tbe purpose of a foreclosure suit is to settle interests claimed or existing in subordination to the- mortgage. Only those should be made parties who are, or who claim under, tbe parties to tbe instrument. When tbe bill shows tbat a defendant asserts title paramount to tbe mortage it is demurrable. When it avers tbat a party defendant claims an interest wbicb is subordinate to tbe mortgage, and tbe answer of such party discloses tbat be relies upon a title paramount, tbe bill should be dismissed as to him, unless the complainant is prepared to prove tbat such claim, interest or title in fact accrued subsequent to tbe mortgage. Otherwise, no decree in tbe case can bar
But on the other hand, where, as in this case, the defendant, brought in under a bill alleging that he asserts some claim to or interest in the property, but that whatever interest he has is subordinate to the mortgage, and praying only that all claims under the mortgagor, &c., be foreclosed, sets up in his answer a paramount claim and the same is litigated without "objection and decided in his favor, the decree can not be attached on appeal on the ground that the question could not properly be litigated in that action. “Both parties, having appeared and having actually litigated the issue in this form, will be bound by the decree.”—Wiltsie on Mortgage Foreclosures, § 1; Helck v. Reinheimer, 105 N. Y. 470; Barnard v. Ouderdouk, 98 N. Y. 158, 163; Jordan v. Van Epps, 85 N. Y. 427, 435.
The parties tried this case without objection as if the issue as to the superiority between the rights of Bolling & Son,- under the Pace mortgage, and of Rufus Cook under the Loeb mortgage were formally in the case. The Chancellor correctly determined that issue in favor of Cook, and dismissed the bill. His decree will not be disturbed here although the question was not properly in the cause, and might have been eliminated from it.
Affirmed.