Johnson v. Murphy, Agnew & Co.

60 Ala. 288 | Ala. | 1877

STONE, J,

The mortgage,' which is the foundation of the present proceedings, bears date March 31st, 1873. Hence, the homestead claim of John M. Johnson, if he owned and occupied the premises in controversy, is not governed by the act “to regulate property exempted from sale for the payment of debts,” approved April 23d, 1873. — Pamph. Acts, 64. If he is entitled to a homestead exemption, it is to be measured by the constitution of 1868.—Miller v. Marx, and Coleman v. Smith, at December term, 1876.

2. The bill in the present ease was filed in the name of four complainants. So fas as John M. Johnson is concerned, the relief prayed rests on the averment, that his signature to the mortgage was procured by fraudulent representations, or assurances, of Agnew, one of the mortgagees. The exact averment is, that Agnew agreed, if the mortgage were made, he would advance to the said Johnson supplies to enable him to make a crop for the year 1873 : that the mortgage was executed in consideration of this assurance, and that Murphy, Agnew & Co. had failed to furnish the promised supplies. There is no averment that complainant lost any thing by such failure, or that he was put to additional expense or inconvenience in procuring necessary supplies to enable him to make a crop. This, at most, amounted to a mere breach of agreement, which might, possibly, support an action at law, or sustain a plea of set-off, to the extent of the injury actually sustained. In the form in which it is here pleaded, it does not sustain the bill, so far as this complainant is concerned.—See Overdeer v. Wiley, Banks & Co., 30 Ala. 709. It results that the bill was rightly dismissed, so far as John M. Johnson complained.

3. When several complainants unite in one bill, it is not enough that one or more may be entitled to recover. All must be entitled to relief, else none can obtain it. — 1 Brick. Dig. 750, §§ 1634-5-6. This is fatal to the present bill, in its present form, whether the female complainants have made a ease for equitable interference ox not.

We need not inquire what would be our ruling, if a motion had been made in the court below to amend the bill by striking out the name of John M. Johnson as a complainant. No such motion is shown to have been made.

4. The mortgage, although shown in tbe proof, and substantially admitted in the pleadings, to have been signed only by John M. Johnson, and not by his sisters, nor by “some other person thereunto lawfully authorized in writing” (Code of 1876, § 2121), nevertheless has a certificate of a justice of the peace attached to it, certifying the acknowledgment of the execution of the conveyance by all tbe persons whose names are attached to it, strictly according to the statute. — Code of 1876, § 2158. As we understand the testimony, this acknowledgment was not in fact made by the female complainants, We are not prepared to say tbis does not create such a cloud on tbe title, as that chancery would entertain a bill to remove it, if only tbe proper parties were complainants.—Lockett v. Hurt, at December term, 1876. But the defense could also be made at law.

We need scarcely say that a certificate of acknowledgment of a conveyance, such as the mortgage in the present record, is a purely official act, and should never be given, in any case, unless it speaks tbe exact truth.

The decree of the chancellor is so far amended, as to make it a dismissal without prejudice; and, as amended, affirmed.