72 Ala. 351 | Ala. | 1882
The bill discloses that there is a personal representative of the deceased mortgagor, his widow, who joined with him in executing the mortgage; and yet fails to make her a party in her representative capacity. It is the settled rule in this State, that to a bill to foreclose a mortgage on lands, the personal representative of the deceased mortgagor is an essential party, as representing the personal estate, unless it is shown that the assets in his hands to be administered are discharged from all liability for the mortgage debt.—Dooley v. Villalonga, 61 Ala. 129. While it is the general rule, that an objection for the want of parties must be taken by demurrer, or by plea, or be insisted on in the answer; yet the want of an indispensable party, in whose absence a decree can not be properly rendered, may be taken advantage of on the hearing, or on error.—McMaken v. McMaken, 18 Ala. 576; Prout v. Hoge, 57 Ala. 28.
The heirs of the deceased mortgagor are infants; and a decree for the sale of the entire mortgaged premises was rendered, without a reference to the register to ascertain and report, whether the premises were susceptible of division; whether a sale of a part would not satisfy the mortgage debt; whether the interest of the infants did not require a sale in parcels, and the parcel which should be first sold. A decree of sale of mortgaged lands which have descended to infants, or other persons-not sui juris, is irregular without such a reference. — 2 Brick. Dig. 260, § 169. If the parties are sui juris, and do not in the Court of Chancery suggest or claim the reference, on error they will be deemed to have waived it.—Ticknor v. Leavens, 2 Ala. 149. The rule is otherwise, as to parties laboring under disabilities.
We do not deem it necessary to consider any of the other assignments of error, as the matters to w'hich they refer, so far as of importance, can be remedied in the futui’e progress of the cause in the Court of Chancery.
For the errors pointed out, thé decree must be reversed, and the cause remanded.