Cullum v. Batre

1 Ala. 126 | Ala. | 1840

GOLDTHWAITE, J.

— 1. When a mortgagor has parted with

all his interest in the estate mortgaged, by a subsequent sale and conveyance of the equity of redemption, the only reason why he is a necessary party to the suit for foreclosure, is, that he may contest the complainant’s demand, and state an account with him of what is due on the debt for which the mortgage is a security. In this case, the debt survives against Brown, the partner of Cowley, and he alone is interested as the surviving partner in stating the account with the complainant: therefore; if it is conceded that a mortgagor who has parted with the equity of redemption, or, in the event of death, his personal representatives should be a party defendant to a suit for the foreclosure of the mortgage, then there is the proper representative of Cowley before the court, as Brown the surviving partner, is alone competent to close the partnership business. The writ of error does not therefore abate by the death of Cowley.

2. The motion of Cullum and Brown to be allowed to assign errors, independent of Gascoigne, their co-plaintiff, must be granted, as any other course might be productive of delay. We do not consider the proceeding of summons and severance, as properly applicable to a writ of error, sued out after a decree in a chancery cause, but prefer to settle the proper course to be pursued by a general rule. In connexion with this subject it may be observed, that the practice of allowing one defendant in a chancery cause, to sue out a writ of error and assign errors, has hitherto been acquiesced in, without the evil having been adverted to, which must arise if successive writs of error were sued out by each defendant. It would seem to follow from this practice, that where the writ of error is sued out by all the defendants in the cause, they ought not afterwards to be permitted to sever in their assignment of error. This would, however, produce as great an evil on the other side, as the interests of defendants in a suit of this, description, are not unfrequently adverse to each other.

3. We consider it proper to determine the future practice, both as to the mode of suing out the writ of error, and the manner of assigning errors, by rule, which we direct as follows:

Ordered, that hereafter, if one defendant, when there are more defendants than one, shall sue out a writ of error in a chancery cause, the same shall be dismissed, unless-it shall be sued out in the names of all the defendants. Each of the defendants in any such cause, when plaintiffs in error, may assign errors in the decree affecting his interests, without joining his co-plaintiffs.