Norville v. Seeberg

Dec 16, 1920

1 Div. 160.

Versions:87 So. 164

205 Ala. 96

1920 Ala. LEXIS 378

THOMAS, J.

Several phases of this case were before the court, on appeal from a decree sustaining demurrer to the bill, in Seeberg v. Norville, 202 Ala. 417, 80 South. 621. And on the second appeal it was held that the power of attornеy to convey land for the payment of a debt was extinguished by the accomplishment of its purpose, the рayment of the debt before the exercise of tho power; that, if the power is sought to be exercised by the agent after the debtor had paid the debt “and been continuously in possession of the land as owner, thе purchaser (who paid only one-seventh of its real value) * * * was not a bona fide purchaser”; was put “оn inquiry as to whether debt had been paid”; that, where debtor executed power to third person to convеy land on written request of creditor for purpose of paying debt, it was necessary, under Code 1907, § 3434, that creditоr join in conveyance, or certify his consent thereon, “such power not being a simple power of аttorney, and therefore not within the exception made by section 3440.” The bill, as amended, to quiet title and to compel the determination of claims to land under Code, § 5443 et seq., held not subject to the general demurrer for want of equity, and that respondent was “put to the more specific demurrer.” Seeberg v. Norville, 204 Ala. 20, 23, 85 South. 505, 508.

Complying with this intimatiоn, that the amended bill was subject to specific demurrer, complainant again amended (January 31, 1920), averring that he “is in the peaceable possession of said land hereinbefore described, claiming to own, and does own, the same in his own right,” that tho defendants deny and dispute complainant’s title thereto, claim to same or interest ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍therein, lien or incumbrance thereon, that “no suit (other than this suit) is pending to enforce or test the validity of such claim of title or incumbrance made or asserted on their part,” and “calls upon” respondents to set forth and specify what right or title they claim to and what lien or incumbrance they claim upon said land and еach part thereof, and how and by *99 wliat instrument or means the same is created or derived. S.-S. S. & I. Co. v. Yancey, 201 Ala. 200, 77 South. 726; Davis v. Daniels, 85 South. 797; 1 Carr v. Moore, 203 Ala. 223, 82 South. 473; Gill v. More, 200 Ala. 511, 517, 76 South. 453. The prayer of the bill for general and specific relief was further amended to the effect that the court “adjudicatе and settle all doubts or disputes concerning the title of defendants, and their claims of title to and of incumbrance on said land above described, and to decree that they have none, and to quiet and adjudge the titlе, etc., as against them.”

[1] The former ruling of this court as to grounds of demurrer theretofore ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and now assigned was well considered (Seeberg v. Norville, 85 South. 508 2 ), and we have no desire to depart, from the same. Code 1907, § 5965; Burgess v. Burgess, 201 Ala. 631, 632, 79 South. 193; C. of Ga. v. Chambers, 194 Ala. 152, 154, 69 South. 518; Ala. Consol. C. & I. Co. v. Heald, 168 Ala. 626, 53 South. 162; s. c., 171 Ala. 263, 271, 55 South. 181; Mann v. Darden, 171 Ala. 142, 54 South. 504; L. & N. v. W. U. T. Co., 195 Ala. 124, 126, 71 South. 118, Ann. Cas. 1917B, 696; W. U. T. Co. v. S. & N. Ala. R. Co., 184 Ala. 66, 62 South. 788; W. U. T. Co. v. L. & N., 199 Ala. 702, 74 South. 1006; Moulton v. Reid, 54 Ala. 320. See, also, Bostick v. Jacobs, 141 Ala. 598, 37 South. 629; Meyer v. Johnston, 64 Ala. 603.

[2] The grounds оf demurrer dealt with on former appeal are now addressed to the bill as a whole, and, not being limited to thаt phase, as one to quiet title under the statute, were properly overruled. Saunders v. McDonough, 191 Ala. 119, 135, 67 South. 591; McDonough v. Saunders, 201 Ala. 321, 78 South. 160.

[3, 4] We then сonsider the sufficiency of the bill as last amended as challenged by grounds of demurrer (as declared therein to be) directed to that “phase of the bill seeking redemption”: (a) That the alleged written demand for a statement in writing of the items on which to make tender for redemption was not served before the filing of the bill “as required' by section 5748 of Code, 1907” ; (b) that it affirmatively appeared that complainant’s demand in writing for a statement of thе debt, with all lawful charges against said land claimed ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by defendants, was made upon defendants after the bill was filed. Such demurrer, being directed to the whole redemption phase of the bill, equitable as well as statutory, being bad as to the equitable redemption sought, was properly overruled. It is averred that plaintiff was ready and willing and offered to pay all amounts that the court might find just and proper as “lawful charges” on the land. Of necessity, the statutory right of redemption is nonexistent until the equity of redemption is extinguished. Randolph v. Bradford, 86 South. 39. 3 See, also, Brannan v. Adams, 202 Ala. 442, 80 South. 826; Ivy v. Hood, 202 Ala. 121, 128, 79 South. 587; Beatty v. Brown, 101 Ala. 695, 14 South. 368.

The “redemption amendment” was made within two years after the attempted execution of the deed under the power of attоrney and in ample time for an equitable redemption (Coleman v. Coleman, 173 Ala. 282, 289, 55 South. 827; Savage v. Bradley, 149 Ala. 169, 173, 43 South. 20, 123 Am. St. Rep. 30), if, in equity, -any sum thereunder be found to be just and due by complainant to any of respondents. However, the respondent mortgagee was chargeable with notice of the limitations and equities contained in his chain of title. Veitch v. Woodward Iron Co., 200 Ala. 358, 76 South. 124; Seeberg v. Norville, 85 South. 505; 4 First Nat. Bank v. McIntosh, 201 Ala. 649, 653, 79 South. 121, L. R. A. 1918F, 353.

[5] A bill is not multifariоus which seeks alternative or inconsistent relief growing out of the same subject-matter or founded on the same contract or transaction, or relating to the same property between the same parties. As thе bill was last amended, it pertains ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the same subject-matter founded on the same contract or transaction, relating to the title to the same property, and between the respective parties at interеst. It was not subject to demurrer for being multifarious. Code, § 3095; Webb v. Butler, 192 Ala. 287, 68 South. 369, Ann. Cas. 1916D, 815; Belleview Cemetery Co. v. Faulks, 198 Ala. 579, 73 South. 927; Mathews v. Carroll Merc. Co., 195 Ala. 501, 70 South. 143; Wheat v. Wheat. 190 Ala. 461, 466, 67 South. 417; Manegold v. Beavan, 189 Ala. 241, 66 South. 448; Kant v. A., B. & A. R. Co., 189 Ala. 48, 66 South. 598; Ford v. Borders, 200 Ala. 70, 75 South. 398; Macke v. Macke, 200 Ala. 260, 76 South. 26; Hard v. Am. Tr. & Sav. Bank, 200 Ala. 264, 76 South. 30; Gill v. More, supra; Barrington v. Barrington, 201 Ala. 185, 77 South. 711; Woodley v. Woodley, 201 Ala. 662, 79 South. 134; Durr v. Hanover Nat. Bank, 170 Ala. 260, 53 South. 1012; Magnolia Land Co. v. Malone Inv. Co., 202 Ala. 157, 79 South. 641; Lowery v. Green, Supt., 203 Ala. 8, 81 South. 676; Birmingham Tr. & Sav. Co. v. Cannon, 204 Ala. 336, 85 South. 768.

[6, 7] When all of its terms are considered, the power оf attorney declared therein to be irrevocable was subject to revocation or ex-tinguishment. Seeberg v. Norville, 85 South. 505. 4 The attorney in fact, against whom no relief is sought, and the beneficiary under the power were not necessary parties; and the demurrer for not making Jno. E. Mitchell and N. A. Andresen & Co. parties defond *100 ant is unavailing; Wootten v. Vaughn, 202 Ala. 684, 81 South. 660; Whiteman v. Taber, 203 Ala. 496, 83 South. 595.

[8, 9] The several amendments, as pointed out in the second decision in instant ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case, relate back to the filing of the original bill. Adams v. Phillips, 75 Ala. 461; Ala. T. & I. Co. v. Hall, 152 Ala. 262, 44 South. 592; Rogers v. Haines, 103 Ala. 198, 15 South. 606; Sims, Ch. Pr. ’ §§ 339, 357. However, the time limit as to the right of amendment extends to the rendition of final decree. Code, § 3126; Kirby v. Puckett, 199 Ala. 594, 75 South. 6; Barrington v. Barrington, supra; Smith v. Lambert, 196 Ala. 269, 72 South. 118.

The decree of the circuit court in equity is affirmed.

Affirmed.

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

Notes

204 Ala. 374.

204 Ala. 20.

204 Ala. 378.

204 Ala. 20.