194 So. 669 | Ala. | 1940
The appeal is under the statute and from an interlocutory decree overruling demurrer to the bill. First National Bank of Opp v. Wise,
A phase of this case, it is alleged in appellants' brief, is reported as Butler v. Wilson,
Upon the remandment of that cause, complainant dismissed the ejectment and instituted the instant suit for subrogation. Appellants' counsel insists that this suit is an effort to "avoid" the issue of insanity vel non of the mortgagor's wife by averring only that this appellant claimed that she was insane; that it is expressly averred that complainant Wilson is the holder of the legal title to these lands and is the assignee of the debt (of Butler) to the Federal Land Bank.
The demurrer challenges the facts of the right of subrogation and insists that complainant has a "plain and adequate remedy by ejectment." Cox v. Boyleston,
To an understanding of this pleading, challenged by demurrer, we shall observe the character and legal effect of the pleading.
Appellant further insists that it is not a bill under the statute to quiet title, in that it is not averred that there is no suit pending to test and enforce the validity of respondents' title, claim or encumbrance. Code, § 9905; Wisener v. Trapp,
The instant bill sought relief outside of the scope and purpose of the statute in the claim of subrogation to the amount of the payment of the first and purchase money mortgage of the funds derived by Butler, who mortgaged to the Land Bank. Such was the nature of the pleading in Hinds v. Federal Land Bank of New Orleans,
It is averred that the defendant George D. Butler purchased the land from J. C. Jacobs and gave his purchase money mortgage to secure the unpaid purchase price of said lands; that the Federal Land Bank after taking its mortgage (exhibited) from Butler and wife of date of December 15, 1922, paid from that consideration to J. C. Jacobs the full amount of the balance of that purchase money mortgage to the amount of $897.25 and obtained from him a full satisfaction and release of such superior lien of record and cancelled the same; that thereafter the said Butler's mortgage to the Federal Land Bank was in default and was duly foreclosed in accordance with its terms and the mortgagee became the purchaser at its foreclosure sale. Thereafter, such purchaser duly conveyed to the complainant Jesse A. Wilson, who took possession of a part of the property conveyed by the Butler mortgage and purchased at foreclosure sale and conveyed to Wilson. The defendants, however, have refused to surrender possession of the said lands so mortgaged and foreclosed, purchased and reconveyed, as indicated.
As to this phase of the case, the amended bill avers:
"Now come the complainants and amend their bill of complaint by adding as parties defendant Donnie Butler and Ovena Butler, adult residents of Marshall County, Alabama, and by changing Paragraph Seventh so as to read as follows:
"Seventh: That under his deed from said Federal Land Bank, the complainant Jesse A. Wilson took possession of the SE 1/4 of the SW 1/4 less ten acres off the South side of Section 23, and the ten acres in triangular shape in the NE corner of the SE 1/4 of the SE 1/4 of section 22, all in Township 5, Range 3 East, and now has possession of the same, but the defendant refused to give up possession of the balance of said lands described in the foreclosure *224 deed, and is now in possession of the same through or with Donnie Butler and Ovena Butler, claiming and asserting that his mortgage to the complainant The Federal Land Bank described in Paragraph THIRD was void because the lands therein conveyed were his homestead, and his wife was insane at the time she signed said mortgage. That defendant's wife is dead."
The grounds of demurrer are threefold. The first is that J. C. Jacobs, from whom Butler purchased, was not made a party. His debt and lien had been paid in full from the proceeds of the loan obtained from the Federal Land Bank. Jacobs was not a proper party under the averments of fact contained in the bill seeking subrogation. As original vendor, he was in no way affected by or subjected to liability or loss as averred in the amended bill. 60 Corpus Juris, 831, § 134; United States Fidelity Guaranty Co. v. Singleton,
Second. It is insisted by demurrer that complainant had an adequate remedy by law. It is affirmed that the rules of law that obtain as to ejectment were not complete and adequate as to the right of subrogation sought to be asserted by the Federal Land Bank and its vendee Wilson. Stone v. Davenport Bros.,
Third. The bill is further challenged in that it does not allege that Mrs. Butler, the wife of mortgagor, "Was in fact insane." We have indicated the exact verbiage of the amendment to the original bill as to this phase of the case. The decisions of this court as to this are that when a mortgagor repudiates his mortgage on the ground that the land was a homestead and the conveyance was not properly executed or that the wife was insane when she executed the same and did not legally join in the conveyance to the purchaser at foreclosure sale prior to such repudiation, the vendee or such a purchaser at foreclosure will be subrogated to the rights under the prior cancelled purchase-money mortgage, as the challenged mortgage furnished the moneys used in paying off such prior and purchase-money lien. Faulk v. Calloway,
In Shaddix v. National Surety Co.,
Several rules that obtain are stated in Jefferson Standard Life Ins. Co. v. Brunson,
The effect of our decisions is that the amended bill contained equity in the respects of the right of a purchaser at foreclosure sale, or the vendee thereof, to be subrogated to a prior vendor's lien discharged by the agreement of the mortgagor and mortgagee and according to the intention of the parties. Sutley v. Dothan Oil Mill Co.,
The claim of illegality as averred was sufficient without the complainant assuming the burden of averring and proving the wife's insanity. The burden of such proof rested upon mortgagor and respondent demurring to the amended bill.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *225
