Marbury Lumber Co. v. Posey

142 Ala. 394 | Ala. | 1904

TYSON, J.

Accepting complainant’s theory of the bill, as amended, as being one for the redemption of land conveyed by the deed of her husband to Wells, which deed, it is alleged, was intended as a mortgage to •secure the payment of the debt of the husband, is not the ■husband a necessary party to the proceedings? If he is, this omission or defect is fatal to the decree, and this court must ex m&fo motu take notice of it. — Dooley v. Villalonga, 61 Ala. 129.

The title to the land, when the conveyance was made to Wells, was in the husband. He is the mortgagor and liable for the debt, and it is with him that Wells’ representatives or assigns are entitled to have an accounting. Indeed, there is no other person with whom the accounting of the amount of the mortgage debt may be had. It is indispensable to a proper adjustment and adjudication of the rights of all the parties that the rights of the mortgagor should be concluded by the decree, which, of course, cannot be done unless he is a party. It seems to us so clear that complainant’s husband is an indispensable party that a further consideration of the question is unnecessary. We need only cite in support of this conclusion the following authorities; 17 Ency. Pl. & Pr. p. 959; Clark v. Long, 4 Rand. (Va.) 451; Sanborn v. Sanborn, 104 Mich. 180.

Reversed and remanded.

McClellan, C. J., Simpson and.Anderson, J.J., concurring.