Hartwell v. Blocker

6 Ala. 581 | Ala. | 1844

COLLIER, C. J.

It was said by Lord Hardwicke, that in pleading, “there must be the same strictness in equity as at law ” [2 Atk. Rep. 632.] But Mr. Justice Story says, “however true this may be as to a plea in equity, technically so called, it can hardly be affirmed to b? true in the framing of bills or answers, in respect to which more liberality prevails. And it may, perhaps, be correctly affirmed, that certainty to a common intent is the most that the rules of equity ordinarily require in pleadings for any purpose,” [Eq. Plead. 208.]

Uncertainty in a bill, it is said, may arise in various ways: L In the case intended to be made by the bill. 2. Though the case intended to be made be certain, yet the allegations of the bill may be vague and general. 3. Some of the material facts may be stated with sufficient certainty, and others again with so much indistinctness or incompleteness as to their nature, extent, date, or other essential requisites, as to render inefficient those with which they are connected, or upon which they depend. [Story’s Eq. Plead. 207, et post, and cases there cited.] In Cresset v. Milton, [1 Ves. jr. Rep. 449,] the bill was brought to perpetuate a right of common and way; the allegation was, that the tenants, owners and occupiers of certain lands of a manor, “in right thereof or otherwise,” from, &c., had and of right ought to have common of pasture, &c. The bill was held bad on demurrer; for “it was not set forth as common appendant, or as common appurtenant, but as that, “or otherwise,” which was no specification at all, and left any sort of right open to proof. So, in Jones v. Jones, [3 Meriv. Rep. 160,] which was a bill by an heir at law to restrain the defendant from setting up an outstanding term, &c.; but as there was no averment of any outstanding terms, it was held bad on demurrer. And where a bill sought a general account upon a charge of fraud, it is not sufficient to make such charge in general terms; but it should point out particular acts of fraud. [Palmer v. Mure, 2 Dick. Rep. 489.] But the complainant is not bound to state all the minute facts; the general statement of a precise fact is usually sufficient. The circumstances which confirm or establish it, more properly constitute matters of proof than of allegation. [Story’s Eq. Plead. 212.]

In the present case, the complainant describes himself as the assignee of A. S. Lipscomb and the administratrix of G. W. Owen, deceased; and after describing the date, and amount intended to be secured by a mortgage to L. and the intestate, the bill continues, “whose interest has been legally transferred and assigned over unto your orator, that certain part or parcel, situate,” &c., (here follows a description of the mortgaged premises.) The notes are described as bearing even date with the mortgage, payable some of them to the order of the defendant Wilkins, the others to the order of the makers; and all of them for unequal sums, payable and negotiable at the Planters’ and Merchants’ Bank of Mobile. It is charged, that although the notes have since been due and payable, yet the mortgagors have failed and refused to pay the same, “whereby the legal estate to the said premises has become absolute in your orator.” In all this, there, is no allegation that the complainant is the assignee of the notes, or either of them; the inference that such is the fact, is not necessary and direct. It may or may not be so. If the terms in which the case is attempted to be stated, are to be understood as having been employed according to their appropriate use, and with their usual meaning, they rather show that the complainant is the as-signee of the mortgage than the notes. And it is not only not alleged that the complainant was the assignee of all the notes, but it is not stated that if either or any of them was assigned to him, which it is.

It may be true, that the mortgage may have been assigned to 'the complainant by the mortgagees, yet this would not authorize him to file a bill for a foreclosure. In Doe ex dem. Duval’s heirs v. McLoskey, [1 Ala. Rep. N. S. 708,] it was determined, that a mortgagee cannot assign the right to the mortgaged property without also assigning the debt to which it is an incident, yet it seems he may relinquish, by contract, the possession of the mortgaged premises to a third person until the debt is paid.

Without amplifying the point, it sufficiently appears from what has been said, that the bill is obnoxious to the objection of uncertainty. That even if the case intended to be made by the bill is certain, the allegations are too vague and general to authorize a court of equity to entertain it.

Although some of the notes are payable to the order of the makers, and do not, upon their face, import a promise to pay any one, yet the mortgage is an acknowledgment that they were the property of the mortgagees — that the mortgagors were bound to pay them; and in order to their security, conveys the land described in it. This is quite sufficient to show, that the notes have been transferred by the maker, whether by writing, or mere delivery is wholly immaterial in the present case. True, in order to maintain an action at law upon them, the plnintiff should show a regular transfer; but it is competent for the holder to entertain a suit in equity, though they were transferred by delivery only.

The bill should state of which of the notes the complainant is the proprietor; if any one of them maturing before those he holds is paid, or outstanding, unpaid, the fact should be stated, and the holder made a party. In respect to subsequent incumbrancers, although they are proper, yet they are not indispensable parties. (Judson v. Emanuel, et al. 1 Ala. Rep. N. S. 598; Cullum, et al. v. Batre’s ex’rs, 2 Ala. Rep. 415.]

In respect to the other questions made by the plaintiffs in error’, it is unnecessary now to consider them. They are mere questions of practice, about which it is not probable that any controversy will arise in the ulterior progress of the cause; especially if the decisions we have heretofore made touching the interest of surviving payees, the powers of executors and administrators, parties in equity, the registration of deeds, and the duties of masters in chancery, are consulted.

It follows from what has been said, that the decree of the court of chancery must be reversed, and the cause remanded. But inasmuch as no objection to the frame of the bill was taken in the primary court, the defendant in error will not be taxed with the entire costs; each party will pay their own costs in this court.