67 Ala. 508 | Ala. | 1880
Lead Opinion
— All the assignments of error, except the fourth and the seventh, relate to matters involved in the final decrees settling the equities of the cause, or, rather, declaring and defining the rights of the parties, rendered more than two years before the appeal was taken. The statute of force when the decrees were rendered, and when the appeal was taken, limited appeals to two years from the rendition of the judgment, or decree. It is insisted in the argument submitted by the counsel for the appellees, that these assignments must be disregarded, because an appeal from the decrees into which the errors are supposed to have entered was barred. The appellees joined in the assignment of errors,
In all courts, the statute of limitations is in the nature of a personal defense, which must be pleaded specially, according to the practice and procedure of the court, and, if not pleaded, must be regarded as waived. — Ang. on Lim. § 285. Such statutes are not limitations on the jurisdiction of courts, which is bounded by subject-matter and by parties. They are intended solely for the benefit and protection of parties, and may be relied ou, or waived by them, as they may be advised, or may deem most proper. At common law, writs of error were governed by rules of pleading analogous to, and as well defined as the rules of pleading in original actions in courts of original jurisdiction. The assignment of errors was in the nature of a declaration. To this assignment the defendant pleaded or demurred, as he was advised. The pleas were common or special. The common plea, being simply an averment that there was no error in the record, was a mere joinder with the plaintiff in error, in referring tbe matters at law to the judgment of the court. Special matters were pleaded specially, either in abatement, or in bar. A release of errors, or that the writ of error was barred by the statute of limitation, was the matter of a special plea in bar. — 2 Tidd B. 1168-75. If these were not pleaded, the court did not notice them, and of them no advantage could be claimed by the defendant. — Brooks v. Morris, 11 How. (U. S.) 204; Merriam v. Haas, 8 Wall. 687.
In this court, the matter has been the subject of rules, adopted soon after the organization of the court, under which a practice, in some respects variant from the practice at law, has grown up, and been of uniform recognition. The rules substantially correspond with the uniform law, as to the assignment of errors, and the common plea, or joinder, in error. Special pleas have not been required, but of the matter of such pleas, the defendant in error has been permitted to avail himself by motion addressed to the court, of which notice is given the plaintiff in error by the entry on the motion docket of the court. The right of a plaintiff to bring error to reverse his own judgment, if injustice has been done him, as where it is for a less sum than he claimed, is unquestioned. If, however, he elected to execute the judgment, compelling the defendant to its payment, he was barred of the writ of error. In numerous cases, this court, without compelling the defendant in error to a special plea, has, on motion, required the plaintiff in error to make restitution, or dismissed the writ of error. — 1 Brick. Big. 104, §§ 306-10. So, of the statute of
A joinder in error, so far as I know, or can discover from the reports, has been given the operation and effect it had at common* law. It is a waiver of, all matters which do not go to the jurisdiction of the court; of all defects in the manner of introducing the cause into this court; of every matter which ought, at the common law, to have been specially pleaded. — Magruder v. Campbell, 40 Ala. 611; Carter v. Thompson, 41 Ala. 375; Alexander v. Nelson, 42 Ala. 462; Thompson v. Lea, 28 Ala. 453. This precise question, whether the statute of limitations is waived by a failure to move to dismiss the appeal, or to strike out the assignment of errors offensive to it, and a joinder in error, has not, so far as I know, been the matter of an express decision. On principle and authority, I have no inclination, if I had the right, to disregard it as a waiver by the appellees of a statute intended for their benefit, and which they may plead or not at discretion.
The mortgage executed by the intestate, Joseph A. Jones, the validity of which is assailed by the original bill, was executed after the debts of the appellant, Bolling, had been contracted, and after he had become liable as surety on the debt to Mrs. Jernigan. To support, as against the claims of existing creditors of the mortgage, it must be shown that it rests on a valuable consideration ; that the debts it purports to secure were just, legal demands. This is not shown by the recitals of the mortgage. — 2 Brick. Dig. 22, §§ 121-134. There was no effort to support the debt recited as due and owing to William F. Jones, the son of the mortgagor ; and as to that debt the mortgage was pronounced void. The consideration of the other debt, recited as owing to the wife of the mortgagor, was the rents of lands, her statutory separate estate, accruing during coverture, the mortgagor, and husband, had received. These rents the husband had the right to re
The exemption of a homestead to the widow could only foe claimed under the former statute. — R. O. 1867, § 2061. This was the only law of force, conferring exemptions, when the debts were contracted, to the payment of which it is sought to subject the premises in controversy. It is apparent from the statute, that a homestead was not given to the widow in lands the husband had aliened in his life, but only in lands of which he died seized, having an estate therein of which his personal representative, under an order or decree of the Court of Probate, could make sale for the payment of debts. The mortgage, though void at the instance of pre-existing creditors, is valid as between the parties, their heirs, personal representatives, and privies in estate by mere operation of law. — Rochelle v. Harrison, 8 Port. 351; Dearman v. Radcliff, 5 Ala. 192; Marten v. Marten, 6 Ala. 367; Walton v. Bonham, 24 Ala. 513; Wiley v. Knight, 27 Ala. 336. There remained in the mortgagor, at the time of his death, no more than the equity of redemption in the premises. This was an interest the Court of Probate had jurisdiction to order the persona! representative to sell for the payment of debts, and a purchaser at the sale would become invested with it. — Perkins v. Winter, 7 Ala. 855; Duval v. McLoskey, 10 Ala. 636.
The equity of redemption was, also, an estate in which the widow could claim a homestead exemption ; or, if the homestead could not be set off to her, without injury to the lands of which it was a part, could claim its value, five hundred dollars, from the proceeds of the sale made by the personal representative. The Court of Probate, having ordered a sale of the lands for the payment of debts, and having ascertained that the homestead could not be assigned and separated from the lands, properly allowed the widow five hundred dollars from the proceeds of the sale made by the personal representative. When this was paid to her, as it was by crediting her bid for the premises, her claim of homestead exemption was satisfied. If a stranger had purchased at the sale made by the administrator, and from his bid the money had been paid to her, I suppose this would be conceded. Whatever might be the defects in the title, or of however insignificant value the estate of the intestate in the premises, the purchaser could not be relieved from the payment of the purchase-money, or reclaim it if paid. To all such sales the maxim, caveat emptor, applies — the purchaser buys at his peril, and can claim no relief if his purchase proves worthless.
The chancellor erred' in not vacating the mortgage, and in the allowance of a homestead to the widow.
Reversed and remanded.
Dissenting Opinion
dissenting. — -On one question I dissent in this case ; the extent of the relief to which complainant is entitled. If there had been no sale by the administrator, of intestate’s interest in the lands in controversy, no one will den y that Mrs. Jones would have been entitled to homestead, or its value in commutation. This, on the very familiar principle, that no matter how fraudulent the mortgage may have been, which Jones, the intestate, executed, to the extent of the homestead interest it did the creditors no harm. They had no right to subject that to their demands, whether retained by the husband, or fraudulently conveyed by him. If the mortgage was fraudulent, to this extent it was not fraudulent against creditor ; for they had do interest in that part of the tract, or right to subject it to their demands. — Fellows v. Lewis, 65 Ala. 343.
There is still another reason why I think my brothers have erred in their judgment in this cause. Under their ruling, Mrs. Bolling recovers the entire proceeds of the land, including the homestead commutation. Now, there is no pretense that the administrator did less than his duty in selling the intestate’s interest in the land. That interest was the equity of redemption, more or less valuable, as the mortgage debt fell below, or equalled the value of the lands. The equity of redemption was all he could sell; for standing in the shoes of the intestate, and clothed only with the right he could have asserted, he could not assail tlie mortgagee for fraud, no matter how fraudulent it may have been. He was, equally with the intestate, estopped from setting up the fraud in avoidance of the mortgage. — 1 Brick. Dig. 664, § 358; 1 Ib. 16, § 45; 1 Ib. 959, § 632. Thus, the administrator could sell only the equity of redemption, and he did sell that under the order of the probate court, and the widow became the purchaser. It is not charged that that proceeding and sale were irregular,
• Other questions may arise under proceedings like the present. A fraudulent mortgage may be made, in amount much less than the value of the property mortgaged. Suppose the mortgagor dies, and it becomes necessary to sell his interest in the lands for the payment of debts. Now, as to such residuum of interest in the deceased mortgagor, his personal representative is the proper person, and the only proper person, to obtain an order, and sell it. It is his duty to do so, and he commits a devastavit if he neglects it. He makes a sale, and an innocent purchaser pays his money for this equity of redemption. Suppose afterwards a creditor, as he may do, proceeds in equity to subject the lands to the payment of his demands. What interest can he condemn ? Is it the entire fee, or only that interest which the personal representative could not and did not sell —namely, the mortgage interest ? True, the sale made by the administrator is what is called a judicial sale, and the rule of caveat emptor applies. But, the second, or chancery sale, is equally a judicial sale, and the same rule applies to it. I ask these questions, without intending at this time to answer them.