Jenkins v. Bradford

| Ala. | Dec 15, 1877

STONE, J.—

The extreme views, sought to be established in defence of this suit, are not sustained by the weight of the evidence. But, independently of that question, on a principle of public policy which has long been an inexorable rule of law, the bill in this case must fail, so far as it seeks partition, and a recovery of one-half the lands. That feature of the case comes directly within the rule against champerty.—Holloway v. Lowe, 7 Por. 488; Dumas v. Smith, 17 Ala. 305" court="Ala." date_filed="1850-01-15" href="https://app.midpage.ai/document/dumas-v-smith-6504192?utm_source=webapp" opinion_id="6504192">17 Ala. 305; Byrd v. Odem, 9 Ala. 755; Wheeler v. Pounds, 24 Ala. 472" court="Ala." date_filed="1854-01-15" href="https://app.midpage.ai/document/wheeler-v-pounds-6505297?utm_source=webapp" opinion_id="6505297">24 Ala. 472. And what is called the renewed, or explanatory contract, must likewise fall.—Lecott v. Sallee, 3 Por. 115; Dickinson v. Bradford, at the present term.

The bill as amended contains equity, so far as it avers, and seeks to foreclose the mortgage made to secure the note for five hundred dollars. The defence admits the justness of that claim. The condition of the record, however, renders it improper that we should here pronounce a decree of foreclosure. The answer of.Jenkins sets up that, with the knowledge and consent of Bradford, he, Jenkins, had sold the mill tract to Carter. The mortgage to Bradford conveys the mill tract as well as Jenkins’ home tract. Unless the bill is so amended as to abandon claims to the mill tract, its ■claimant should be made a party defendant.

Beversed and remanded at cost of appellee.