Hamilton v. Clancey, 72 So. 15

Hamilton v. Clancey

72 So. 15 | Ala. | 1916

GARDNER, J.

The above statement of the case discloses that the complainant in the court below sought a foreclosure of an equitable mortgage on the personal property, to-wit, the automobile, under a decree of the chancery court, so as to subject a sufficiency of the proceeds of the sale to the payment of the debt for the security of which it was given. The maker of the note, who may also be referred to the mortgagor, is shown to be a *196non-resident of the state. No decrree is sought against him. The bill shows that he has, by an absolute sale of the property, parted with all his interest therein. He is therefore without any interest in the mortgaged property. Nor is relief sought against the respondent himself. The case is ruled by that of Boutwell v. Steiner, 84 Ala. 307, 4 South. 184, 5 Am. St. Rep. 375, the first headnote of which reads as follows: “The mortgagor is not a necessary party to a bill for a foreclosure, filed against a purchaser, or assignee, to whom he has sold and conveyed his entire interest in the lands, which is only an equity of redemption.”

See, also, to the same effect, Batre v. Auze’s Heirs, 5 Ala. 173; Gravlee v. Lamkin, 120 Ala. 210, 24 South. 756; Kirk v. Sheets, 90 Ala. 504, 7 South. 736; Cooper v. Johnson (C. C.) 157 Fed. 104.

No deficiency decree is here sought, but the complainant seeks only to have the mortgaged property condemned to the satisfaction of the debt. The mortgagor, having parted with all his right, title, and interest in the said property, is therefore not an indispensable party respondent to the bill.

We do not find that the cases of Prout v. Hodge, 57 Ala. 27, and Harwell v. Lehman Durr Co., 72 Ala. 344, relied on by counsel for appellant, at all militate against the conclusion we have here reached.

The decree of the chancery court was in accordance with the views herein expressed, and it is accordingly affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.