G. W. Byrne & Co. v. Taylor

| Miss. | Oct 15, 1871

Simeall, J. :

The question litigated in this court is the decision of the chancellor, dismissing the complainant’s bill, on the demurrer of the defendants.

The original bill was in the name of Greorge W. Byrne & Co., for the use of Pike, Brothers & Co. The amended bill is an iteration literally of the original, except that it is in the name of Greorge W. Byrne and Alfred Dameran, constituting the copartnership of Greorge W. Byrne & Co., complainants, against the defendants, the widow and heir of Hamilton Taylor, deceased. The bill is to foreclose a mortgage made by Hamilton Taylor (since deceased) and Maria, his wife. It seems to stand upon authority, as an exception to the general rule, that the administrator of the deceased mortgagor is not a necessary party defendant. Story’s Eq. Pl., § 175; Knight v. Knight, 3 Atk. 333; Cooper’s Eq. Pl. 38. In a suit in equity against the heir upon the bond or covenant of his ancestor, the administrator of the obligor is a necessary party, for the reason that the personal estate is the natural and primary fund for payment of debts, and this ought to be so applied in exoneration of the land, which may be done by one suit. Maddox v. Jackson, 3 Atk. 406; 1 Story’s Eq. Jur., § 571; Story’s Eq. Pl., § 173. The heir has the same right that the personal property shall be first applied to pay off the mortgage debt, but the authorities do not compel the mortgagee to bring in the administrator as party to his foreclosure suit, but leave the heir to his remedy over against him for re-imbursement. But if there be no legal representative, as averred in the bill, there is ample excuse to proceed against the heir. The first cause of demurrer is not well assigned.

The second, third and fourth causes relate to the attitude of the widow of the mortgagor, and her interest in-the land, and execution of the mortgage.

She is a necessary defendant; as widow, she would be entitled to dower in the premises, and to protect that interest would have a right to redeem, by paying off the debt, and calling upon the heir for contribution. If the premises were her property, the mortgage would be valid to the extent of the income. Peiffiaps the presumption would be that the title was in the husband, and that she joined in the deed to cut off her contingent right of dower. In Denniston et al. v. Potts, the mortgage was executed by Ferriday and wife, and she was declared to be a necessary party, because of her dower claim, and privilege of redemption, the presumption being indulged that the title was in the husband. 11 Smedes & Marsh. 37.

If the lands belong to Mrs. Taylor, in her own right, she can disclose that matter in her answer, and confine the mortgage to the income.

The lands, tenements or hereditaments of a married woman, or “her right of dower,” shall pass by a deed made by her and her husband duly acknowledged, etc. Code of 1857, art. 32, p. 313. The statute is in negative words, 1 ‘ the lands * * * or her right of dower shall not pass by deed of herself and husband * * * without a previous privy examination of herself before some competent officer.” It has not been the practice to incorporate in the body of the deed or the acknowledgment, a recital that the wife unites in the conveyance to alienate her right of dower. This is assumed in the case cited from 11 Smedes & Marsh. The examination is “privy” as to the husband ; out of his presence, because the wife is “sub potestate viri” and the officer must show that she was removed from the control and restraint, implied in the presence of the husband. But the averment in the bill is that the deed was duly acknowledged. The bill is all that can be looked at in determining its sufficiency on demurrer.

The prayer is, “that the usual decree for the sale of the premises may be made, and for other and further relief, as the nature of the case may require.” There is no difficulty in adapting the decree to the circumstances of the case, by giving a day of payment before sale is made.

The bill does not disclose that there are other incum-brancers, by name, subsequent to the mortgage, and it could not, therefore, be objected that they were not made parties. The effect of the prayer is, if there be such, that they may be made parties and be permitted to defend their claims.

We think that the bill ought not to have been dismissed. The complainant ought to describe in his pleading the mortgage premises. Upon return of the case to the chancery court, leave will be given him to do so.

Decree reversed and cause remanded.