61 Ala. 129 | Ala. | 1878
Appellants are the widow and children of John Dooley, deceased, who in 1871, made a mortgage of the property constituting his homestead, to appellee Villalonga, as a security for borrowed money. Dooley and wife both signed the instrument and acknowledged in due form of law, the execution of it by them. This suit is for foreclosure ; and appellants deny that the deed is effectual against their right of homestead. The property belonged to John Dooley to whom individually it had been conveyed; and he alone according to the terms of the instrument, as grantor, bargained, sold and conveyed the land, in mortgage, to Vil
It is ingeniously contended — (first)—That Mrs. Dooley’s signature does not make her a grantor of the property with her husband in the conveyance of it; and several cases are cited to support this proposition; — Harrison v. Simons, 55 Ala. 510; Agricul. Bank v. Rice, 4 How. (U. S.) 225; Catlin v. Ware, 9 Mass. 218; Powell v. Monson, 3 Mason, 348; Leavitt v. Lampsey, 13 Pick. 382; Lafkin v. Curtis, 13 Mass. 223; and, (secondly,) that the power of sale which she joined in granting, was a power appendant — annexed to the estate acquired by the mortgagee, — and could not operate beyond it on anything else, and that since she did not join her husband in conveying her homestead property, the mortgagee had no estate in it in respect of which the power to sell, could be executed.
But, to this the answer is: — -The title to the property was in the husband only, and so was the right of homestead. His deed, if validly made, would convey the title; and the only ground of invalidity alleged is supposed to exist in the constitutional clause which declares that the “ mortgage or other alienation of such homestead, by the owner thereof, if a married man, shall not be valid without the voluntary signature and assent of the wife thereto.” It is not a conveyance by her that is required, but her “ voluntary signature and assent,” to the conveyance of her husband. And we think this provision is complied with, when in the body of the deed made by her husband, she voluntarily, expressly, and in conjunction with him, vests the mortgagee “ his heirs and assigns with full power and authority upon default in the payment of the note . . to sell out all the interest in the premises described,” — and adds her signature to the instrument.
There is however an omission of a material party. No reason is shown why an administrator of John Dooley’s estate was not made a defendant. True, according to some of the books, that would seem not to be necessary in such a case. — Story’s Eq. PI. §§ 175, 196 and notes. This is an exception to a general rule, and was derived from a note of Mr. Cox to Knight v. Knight, (3 P. Wms. 333) in which the reason for the ruling, assigned by the master of rolls, is—
It was common, in that day, to file a bill not for a sale of the mortgaged property, but for a foreclosure of the equity of redemption only, with the intent to perfect thereby the title of the mortgagee as owner, and quiet his right to the land. But in our practice this is very rare. The land is sold to pay the mortgage debt; and if after the proceeds are so used, the debt is not fully paid, the administrator is chargeable with the residue. Hence it was held in Wilkins v. Wilkins (4 Por. 245), that the administrator of the deceased debtor was “ certainly an essential party as representing the personal estate. It would be his duty to prevent a recovery for a larger sum than was due upon the mortgage, inasmuch as the assets in his hands would be liable to pay so much as might be unsatisfied by a sale of the mortgaged property.”
With this a passage in Inge v. Boardman, (2 Ala. 331) appears to be in conflict. But the conclusion goes beyond the premises. Construed with the facts of the case, the decision is simply this: — when it is shown that the administrator and the estate in his hands are discharged from the mortgage-debt, — as when it is barred as against them under the statute of non-claim, by failure to present it, — then it is not necessary to make the administrator a party.
Moreover, in England, real estate, whether under mortgage or not, was not liable to be subjected, as it is by our law, to administration as assets of the estate of a deceased person. If by any specialty the former owner of lands there, bound his heirs to the discharge of a debt contracted by him, the heir was directly suable at law, on account of the estate descended; in which the administrator as such, could never have any interest. But as the real estate may, by our law, and generally is brought under his administration, duties in respect to it, are cast upon him; and it is highly proper that a mortgagee filing a bill to sell lands to pay a mortgage debt, should be required to make the administrator a party, that he may see to it that property in which his interest may be greater than that of the heirs, is not unduly subjected to diminution. In Alabama, it has for many years, been the uniform practice in suits of this kind, for the mortgagee to make the admistrator of the mortgagor a party, unless it be shown that he has no interest therein.
In the present case we observe, that what is called in the statute an administrator ad litem was appointed, in the pro
The absence from a cause of a material party to it, is a defect of 'which this court will ex mero motu take notice. Prout v.Hoge, 57 Ala. 28; Goodman v. Benham, 16 Ala. 225.
Let the decree be reversed and the cause remanded.