Macke v. Macke

76 So. 26 | Ala. | 1917

GARDNER, J.

The bill here under review was filed in a double aspect. In the first aspect a cancellation of the mortgage is sought by the complainant, on the ground that it was given as security for her husband’s debt, and therefore void under the statute. In the second aspect the bill acknowledges the validity of the mortgage, and shows the belief on the part of the complainant that the same had been paid by her husband, and his assurance to her of that fact; but also shows that, in the event it be ascertained that the note had not been paid, complainant is ready and willing to pay whatever sum is found to be due thereon, and so offers in her bill. In this second aspect it also shows that the husband is in possession of the property, either as transferee of the mortgage or claiming under his brother who is alleged to claim as transferee thereof — an uncertainty and ignorance on the part of the complainant as to who is the owner of said mortgage — and complainant seeks an accounting as to said rents. In this latter aspect, therefore, the bill may be properly treated as one for redemption by the mortgagor, and an accounting.

[1] While, under a former decision of this court (Williams v. Cooper, 107 Ala. 246, 18 South. 170), a bill containing these two separate aspects in the alternative would have been subject to demurrer for multifariousness, we are clear to the view that under the provisions of section 3095, Code 1907, and the decisions of this court construing the same, such a bill is not now subject to this objection (Durr v. Hanover Bank, 170 Ala. 260, 53 South. 1012; Kant v. A. B. & A. R. R. Co., 189 Ala. 48, 66 South. 598; Moore v. Empire L. Co., 181 Ala. 344, 61 South. 940; Morris v. Mortgage Bond Co., 187 Ala. 262, 65 South. 810).

[2] It is to be noted that the demurrer is addressed to the bill as a whole, and therefore does not test any particular aspect of the bill. If either aspect of the bill, therefore, has equity, the demurrer taking the point that there is no equity in the bill cannot be sustained. Jones v. Barker, 163 Ala. 632, 50 South. 890; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 South. 886.

[3] What has been previously said concerning the second aspect of the bill discloses our conclusion that this feature has equity as for a redemption by a mortgagor, and an accounting to ascertain the amount due, if any, and also an accounting by the transferee of the mortgage of rents collected from the . property. Harris v. Jones, 188 Ala. 633, 65 South. 956; Stockdale v. Cooper, 193 Ala. 258, 69 South. 110; Williams v. Cooper, supra.

[4, 5] The bill is not one for discovery only, as insisted by counsel for appellant, i but the discovery feature of the bill is only in aid of the relief sought. If there were any objections to this feature of the bill, or, indeed, that aspect of the bill seeking redemption, no demurrers were addressed thereto, and therefore the sufficiency of this ID articular feature, further than a determination of its general equity, need not be considered.

It results that the decree of the court below will be affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.