Kimbrell v. Rogers, 90 Ala. 339

90 Ala. 339 | Ala. | 1890

McCLELLAN, J.

The decree appealed from was rendered on the 28th day of March, 1888. The respondents below prayed the appeal, and executed security lor the costs thereof, on the 28th day of March, 1889. The undertaking to secure costs was approved and filed in the office of the register on that day. The citation of appeal was not issued, however,' until the following day, March 29th, 1889; and not served until April 2d, 1889. Upon this state of facts, it is insisted that the appeal was not taken within a year from the rendition of the decree, is consequently barred by the statute, and that axDpellee’s motion to strike out the assignment of errors should be granted.

We can not concur in this view. An appeal is “taken,” within the meaning of our statute, when the party desiring to prosecute it has complied with the conditions upon which the law gives the right. The only condition precedent in this case was the filing with the register, within one year from the rendition of the decree, a sufficient undertaking to secure costs. This was done, and the right fully perfected within the time limited. Whatever else remained to be done, in effectuating a review of the case by this court, depended upon the discharge of duty by a public officer, and not upon any act of the appellants. The appeal having been taken on March 28th, it became the register’s duty to cite appellee to its defense in this court, and make out and file here a transcript in the cause. The citation is no part of, nor does it constitute any step in, taking the appeal. Section 3631 of the Code demonstrates that it issues only after the appeal has been taken, and accomplishes its office, if it carries notice of the appeal to the appellee ten days or more before the day on which the appeal is returnable. The duty of the officer is fully performed, if the citation is issued. in time to accomplish this purpose, as was done in this case.—Moore v. Spier, 80 Ala. 129.

The decree from which the appeal is prosecuted, was the final decree in the cause. That of January 18th, 1888, was interlocutory. It adjudged that complainant was entitled to relief; that he had a lien on the land for the payment of any sum still due on the note and mortgage: and that for the satisfaction of such balance he was entitled to have the land sold. Whether there was anything due on the mortgage, was a disputed question in the case. The indebtedness claimed was denied by the answer of R. Kimbrell. The issue thus presented involved one of the equities upon which complainant’s right to relief depended. This issue of indebtedness vel non was not determined by the decree of-January 18th, but was by that decree referred to the register, and the essence of the relief prayed — the sale of the land for the satisfaction of the mortgage — could not be, and was not granted, until after the coming in of the register’s report, ascertaining indebtedness under the mortgage; the confirmation thereof, and the decree of sale of March 28th, 1888.—Garner v. Pruitt, 32 Ala. 13. The January decree was, therefore, interlocutory — it did not settle all the equities between the parties, nor fully adjudge the relief for which complainant prayed. That of March was final, and the appeal brings it and all previously rendered interlocutory decrees up for review.—Walker v. Crawford, 70 Ala. 567.

There was no error in the decree overruling demurrers for non-joinder and misjoinder of parties. Under the act of February 28, 1887, which was of force when the bill in this case was filed, the husband was not a necessary party defendant to a bill filed against a married woman, seeking to subject or charge her separate estate.—Marshall v. Marshall, 86 Ala. 383. The theory of the bill is, that the lands embraced in the mortgage bfeloziged to Rolazid Kimbrell. The conveyance havizig beezz executed by his wife, izi the znazmer prescribed by the statute for the relinquishznent of her inchoate right of dower, she was a proper party defendant to the suit to foreclose the mortgage, and cut off that right by a sale of the fee. Sims v. Mat. Com. Bank, 73 Ala. 248; McGehee v. Lehman, Durr & Co., 65 Ala. 320.

The znortgage izi' terms conveys “the following described tract or parcel of lazid, to-wit: the property knowzi as Kimbrell’s grist azid saw mill azid gizi, together with all the privileges and appurteziazices belonging thereto, lying izi Marengo comity,” &c. It was izi evidence, that two acres of land, upozi which the mill azid gizi were situated, had always been used izi cozinection therewith, azid was necessaiy to the ezijoyment thereof. This lazid, we think, is embraced izi the descriptive words of the coziveyance, as “the tract or parcel of land known as the Kimbrell grist and saw mill and gin property.” But, were this otherwise, the lazid manifestly is appurteziazit to the mill azid gin, azid essezitial to their reasonable use; azid while, ordinarily, land can not be said to pass as appurtenant to lazid, if the land expressly granted does not admit of reasonable enjoyment 'without certain adjacent land, which has been constantly used with the land granted, it will also pass.—Woodman v. Smith, 53 Me. 81; Biddle v. Littlefield, 53 N. H. 508; Voorhees v. Burchard, 55 N. Y. 102; Esty v. Currier, 98 Mass. 502; Allen v. Scott, 21 Pick. 25.

The contention of appellants, that the mortgage is void, proceeds upon the assumption, that the land in controversy belonged to the statutory separate estate of Mrs. Kimbrell. The proof fails to support this assumption. On the contrary, there is no dispute but that the property belonged to her first husband, and passed to his heirs, who are defendants to this bill. Her claim to have acquired title by adverse possession, ■can not be allowed. The evidence is free from conflict, that she at no time claimed to hold otherwise than as the widow of Benjamin Rentz, and in recognition of the title of his heirs. Her only right, therefore, was to have dower assigned out of the land, and to occupy it until that could be done. This light lies in action only, and constitutes no estafe in the premises. Reeves v. Brooks, 80 Ala. 26.

Whether her right to dower was barred by the lapse of twenty years from the date at which it might have been asserted (Barksdale v. Garrett, 64 Ala. 280), or whether, if still subsisting, it was, or could have been made, available in resisting the present bill, are questions which are not presented by fhis record, as will be seen further on, in such way as that we can consider them.

The land in controversy was sold and conveyed, in April, 1880, by the heirs of Benjamin Rentz, deceased, to the respondent, Roland Kimbrell. Two of the three grantors in that conveyance were of full age at the date of its execution. The third, Alice Rentz, now Alice McGehee, was a minor. That part of tbe purchase-money which belonged to the adults was paid. This deed, it is very clear, vested all the right, title and interest of the adult heirs in the respondent, Roland Kimbrell. The mortgage executed by the latter and his wife, it is equally clear, passed all his estate in the land conditionally, into the complainant. The decree foreclosing the mortgage, and ordering a sale of the land for its satisfaction, is certainly free from any taint of error which could prejudice or impair any right or interest of the adult heirs or their grantee, the defendant, Kimbrell. The plaintiff was, beyond question, entitled to have their interests foreclosed, and their estates in the property subjected to the payment of his debt. It may be conceded, that the undivided one-tliird interest of Alice McGehee did not pass by the deed of 18S0 to Roland Kimbrell, because of her disability of infancy, which is pleaded in this case, and that, of consequence, this interest did not pass by the mortgage to the complainant. It may also be conceded, without affecting the result of this appeal, that there was some outstanding property right in Mrs. Kimbrell, resulting from her survivorship of her first husband, which the mortgage was not efficient to convey. And as a deduction from these concessions, the decree may be admitted to be erroneous, in that it forecloses and orders to be sold the property rights of Alice McGehee and Mrs. Kimbrell. Yet, manifestly, the error in this regard affects only these two respondents. They alone have a right to complain of it, and to ask this court to reverse the action of the Chancery Court by which their rights are prejudiced. The error, if any, is without injury to the other appellants, and no reversal on account of it can be had at their instance.—Norwood v. M. & C. R. R. Co., 72 Ala. 603 ; Gilman v. N. O. & S. R. R. Co., Ib. 566; Walker v. Jones, 23 Ala. 448.

This appeal is taken and prosecuted by all the defendants below. The assignments of error in this court are made by them jointly. The decree appealed from involves no error injurious to the appellants, E. B. Rente, R. E. Rente, or Roland Kimbrell. If it involves error working injury to the rights of the other appellants — an inquiry which it is not necessary to enter upon — they should have severed in the assignment of it. The former adj udications and settled practice of this court impel us to disregard assignments of error, made jointly by all the appellants, as to matters which are available, if at all, to some of them only.—McGehee v. Lehman, Durr & Co., 65 Ala. 320.

Those assignments which are directed against the decrees of July 2d, 1888 (ordering petition for writ of assistance), and October 16th, 1888 (confirming report of register), must be stricken out in response to motion of appellee. The record shows that no appeal was taken from either of these decrees. Atkinson v. C. & N. Railway Co., 34 N. W. Rep. 63 ; Horn v. Volcano Water Co., 18 Cal. 142; Bornheimer v. Baldwin, 38 Cal. 671.

Affirmed.