73 So. 964 | Ala. | 1916
The bill was filed by complainant to foreclose a mortgage on land jointly executed by Sarah J. Crumley and J. W. Crumley to complainant in 1903, to secure their joint promissory note of even date. The recital in the mortgage is: “For and in consideration of Sarah J. Crumley’s and J. W. Crumley’s indebtedness to W. A. Brown, etc.” Sarah J. Crumley being dead, the bill was filed against J. W. Crumley, personally, as administrator of Sarah J. Crumley; and, upon the death of the former pending suit, the cause was continued against L. J." Cox, as administrator de bonis non of Sarah J., and as administrator of J. W. Crumley, and, by amendment, against the heirs at law of Sarah J. The answers denied both the validity of the mortgage and the mortgagors’ ownership of the land, and Cox’s answer also denied that the notes were given for the debt of his .ntestate Sarah J. Crumley. Upon submission on pleadings and
(1) 1. The only evidence offered by complainant was the mortgage and notes, which were self-proving in the absence of any impeachment by special pleas; complainant’s déposition showing that the indebtedness was unpaid except for two small payments aggregating about $18; and a deposition proving the amount of a reasonable attorney’s fee.
The only evidence offered by respondents was the bill of complaint in a chancery case, wherein two of the respondents were complainants and Sarah J. and Jno. W. Crumley were defendants, and the decree thereon divesting title to the lands in question out of the said defendants and into the said complainants. The bill was filed in 1909, and the decree was rendered in 1910. The present complainant was not a party to that proceeding, and there is nothing in this record to show that this complainant had any notice of the trust in favor of these two respondents, which was enforced in that proceeding against Sarah J. Crumley, as holder of the legal title. On the proceeding and evidence submitted, the complainant was entitled to the relief prayed for — the foreclosure of the mortgage.
(2) Prima facie, the mortgage and notes imported a joint obligation by both mortgagors as principals upon an original debt, and the burden was on respondents herein to show that the mortgaged premises belonged to Sarah J. Crumley, and that her obligation was in fact that of a surety to pay the debt of her husband.—Lunsford v. Harrison, 131 Ala. 263, 31 South. 24; Gafford v. Speaker, 125 Ala. 498, 27 South. 1003; Gibson v. Wal
(3) And as against a grantor, or his privies, it is not necessary for a grantee to show that the grantor was in fact the owner of the granted premises, so far as the operation and effect of the deed is concerned. In such a case, the grant itself is conclusive of the grantor’s title, and the grantor, on the principle of estoppel, is not permitted to deny it.—Stewart v. Anderson, 10 Ala. 504, 508.
(4, 5) With respect to the chancery record offered by respondents, it was not competent evidence, not only because complainant was not a party to the suit, but also because nothing in the pleadings authorized its introduction in evidence. It was duly and properly objected to, and could not be considered.
(6) 2. Counsel for appellants erroneously assume that certain allegations in the petition for rehearing were ingrafted on the bill as an amendment thereto; and erroneously assume, also, that an affidavit of complainant, which accompanied the petition, was made evidence in support of the bill, and was considered by the chancellor in the rendition of the final decree. Neither assumption finds the slightest support in the record, and we must presume that the chancellor proceeded in accordance with the lawi Moreover, neither, the supposed amendment nor the affidavit was, in any event, either necessary or material to the result.
(7, 8) The granting or denial of a rehearing on a petition filed during the term at which .the decree was rendered, under Chancery Practice Rule 81 (Code, p. 1553), is a matter within the unrevisable discretion of the chancellor.—Ex parte Gresham, 82 Ala. 359, 2 South. 486; Cummings v. May, 110 Ala. 479, 483, 20 South. 307. When a rehearing is granted, the case stands as if no decree had ever been rendered.—Stein v. Dahm, 96 Ala. 481, 11 South. 597.
(9) But this does not mean that the original submission is ipso facto set aside. That would result alone from the order of the chancellor; and, if no new or additional evidence, is to be introduced and no material amendment is to be made, there could be no occasion for a resubmission of the cause. The question of allowing additional evidence to be offered is left to the sound discretion of the chancellor.—Stein v. Dahm, supra. If it is allowed, there must be notice to the opposite party and a resubmission of the cause, as a matter of course. If not, the
(10) Rule 81, supra, does not provide for notice of the petition to the opposite party, and requires its determination without argument. Without now deciding that notice of the petition is not required in any case, it is clear that the action of the chancellor in this case was proper, and that his grant of the rehearing and contemporaneous rendition of a final decree cannot be complained of as prejudicial to appellant.
We find no error in the record, and the decree of the chancery court will be affirmed.
Affirmed.
