Hudson v. Kelly, 70 Ala. 393

Hudson v. Kelly

70 Ala. 393 | Ala. | 1881

STONE, J.

The present is a suit to redeem lands' by the alienee of the' mortgagor, Balkum: We style him mortgagor, for we agree with tné; chancellor that the deed from Balkum and wife to Hudson, absolute on its face, is clearly shown to *396have been intended as a mortgage security.—2 Brick. Dig. 271, §§ 216-7-8. At the time the Ml was filed, in October, 1879, and when it was amended, in August, 1880, the debt to Solomon, or rather to Wolffe, his assignee, remained unsatisfied, in-whole or in part. Probably, the greater part of 'it was then unpaid. The evidence of it had not been cancelled, or transferred to Kelly. The bill being one to redeem from under a mortgage not satisfied or paid, the holder of the mortgage debt was a necessary party. He had a right to be heard on the extent of his claim, and in taking the account. There was a demurrer to the original bill for this non-joinder, and that demurrer ought to have been sustained.—Woodward v. Wood, 19 Ala. 219; 2 Brick. Dig. 261-2, §§ 174, 181, 184, 186, 193 ; Dooley v. Villalonga, 61 Ala. 129; McMullen v. Neal, 60 Ala. 552. This is an error in the proceedings in the court below, which, at the time the decree should have been pronounced upon it, was prejudicial to appellant.

The amended bill, filed in August, 1880, avers that the mortgage debt had been paid. The proof shows Kelly paid it in November, 1880, some three months after the amended bill was filed. Till that payment was made, Wolffe remained a necessary party, yet he never was made a party. After that, he ceased to have any interest, and Hudson was no longer interested in the land, as indemnity against the debt to Solomon, or Wolffe, his assignee.

Appellant claims that Kelly’s deed, conveying, as it assumes to convey, Balkum’s homestead, is void, because the execution by the wife of the latter is not authenticated as the statute requires. It is a sufficient answer to this, that it is no' where shown in the record that Balkum occupied the land as a homestead, when he and his wife conveyed to Kelly. The conveyance by Balkum is certainly sufficient, and sufficiently certified to go in evidence to the jury as against him. But no objection was raised in the court below to its introduction in evidence. It is one of the pieces of evidence offered by complainant, and noted, and the record does not- inform us it was objected to. There is nothing in this objéction. We think the other points urged in argument are without merit.

■ Neither party, complainant or defendant, is without fault in this controversy. Hudson’s claim that the land was absolutely his, with no right of redemption in Balkum ,or his alienee, is devoid of merit. So, Kelly’s bill to redeem was filed without any previous attempt or offer to pay the debt the mortgage was given to secure. True, the bill contains an offer to pay,, which gives the bill equity; but, when the-mortgagee is willing to receive his money, and interposes no other barrier to relief, the redeeming mortgagor should be, and usually is, taxed with the *397costs of the redemption suit. The present was a case for division of the costs of the court below.

No possible good can come of remanding this cause. If the bill had contained proper amendments, made at the right time, the decree as to the title, and as to the injunction of the recovery at law, would be free from error. Practically, those amendments have been rendered unnecessary. We will, there* fore, treat them as having been made, and here render the decree substantially as the chancellor rendered it, with the single exception, that the costs of the court below must be taxed equally'against the complainant and .defendant.

Reversed and rendered, at the costs of the appellee.