Buckheit v. Decatur Land Co.

140 Ala. 216 | Ala. | 1903

TYSON, J.

The cases of Allen v. Pancoast, (20 N. J. Law, 68), and Stearns v. Martin, (4 Cal. 227), cited and relied upon by counsel for appellant as supporting his contention that the averment of the bill relative to the assignment of the notes and mortgage is a conclusion of the pleader and, therefore, wholly insufficient to Avith-stand the attack by demurrer raising that point do not and can not by any sort of construction be made to sustain it. On the contrary in Allen v. Pancoast, the general averment that the bond, the foundation of the action, Avas “duly assigned” to the plaintiff Avas held sufficient. In Stearns v. Martin, the defendant in his answer in setting up a counter claim simply averred that “he had acquired all the interest of said Morgan in the contract and the right flowing therefrom.” The court said: “The averment of the amended ansAver of the defendants, as to Martin’s acquisition of Morgan’s interest, is too loose and uncertain. It should, at least, have alleged a positive transfer or assignment and the character of it so that the plaintiff would be put upon notice of wliat be bad to meet?” Doubtless, as indicated by tbe language, bad the answer averred that the contract was assigned or transferred in ivriting by Morgan to Martin, the court would have held the averment sufficient. It will be noted that in both of these cases, the actions were at law, and in the absence of statute, the assignee or transferee must have had the legal title to the bond or contract. Assuming this question to be raised in this case by the demurrer, there is no merit in the contention.

Conceding that the character of the writing is not sufficiently averred to show a transfer or assignment of the notes and mortgage so as to carry the legal title to the notes and the legal estate of the mortgagee in the land, an equitable assignment of the debt secured by the mortgage is sufficiently shown. “A transfer, of the mortgage debt, whether by writing or parol, is in equity the assignment of the mortgage. * If the assignment is not in writing, but by parol, the legal title to the debt, and the legal title in the premises remaining in the assignor or mortgagee, the assignee seeking a foreclosure, must make the assignor a party, that the legal title and estate may be bound by the decree.” Denby v. Mellgrew, 58 Ala. 149.

It is of no consequence whether the assignor or mortgagee be a party complainant or respondent to the bill, since being before the court he will be concluded by the decree, saving the mortgagor from all future litigation with him.—Beebe v. Morris, 56 Ala. 525.

If the assignment of the notes and mortgage to complainant in this case was insufficient to pass the legal title of the mortgagee to the notes, and the land conveyed by the mortgage, a decree of foreclosure will operate to divest it.

On the other hand, if the legal titles to the notes and the property conveyed by the mortgage passed by the assignment no relief could be granted as against the mortgagee.

Whether the mortgagee is properly or improperly a party defendant is a question which the mortgagor can not raise.

The demurrer was properly overruled.

The decree is affirmed.