Orr v. Blackwell

93 Ala. 212 | Ala. | 1890

COLEMAN, J.

— 1. The appellee, Blackwell, was the assignee of the mortgage, and became a purchaser at his own sale of the mortgaged lands. He may, therefore, come into equity to have the sale confirmed, and his title perfected; and may offer in his bill to have the land resold, at the option of the mortgagor. The equity of the bill in these particulars is fully supported by the authorities. — McHan v. Ordway, 82 Ala. 463; s. c., 76 Ala. 347.

2. The bill does not assail, but impliedly admits, the validity and priority of the \ mortgage executed by the defendant Orr to Turney. The latter was, therefore, a proper party defendant to the bill as a prior incumbrancer; not with the view of contesting his title, for no such purpose is disclosed in the bill, but for the purpose of maiding a sale of the whole title, and of paying off such incumbrances, so far as equitable, from the proceeds of sale. — 2 Jones on Mortg. § 1439; Randle v. Boyd, 73 Ala. 262, 287. The defendant Turney, moreover, had embraced in his mortgage some land not included in that of the complainant. He could be compelled, therefore, on the principle of marshalling securities, to exhaust his separate fund before resorting tu that part of the land embraced in both mortgages as a common fund. He was properly made a defendant for this additional reason — Anderson v. Ala. Gold Life Ins. Co., 72 Ala. 32.

3. The land conveyed by the Blackwell mortgage belonged to the husband, Horace Orr, not to his wife, and it embraced no part of the homestead proper. Eo examination of the wife separate and apart from the husband was required, and hence no certificate of the fact was necessary under section .2508 of the Code. The form of acknowledgment complied with section 1802 of the Code, 1886, and the portion of it relating to the wife’s examination was surplusage. Conceding that this part was defective, the sufficiency of the remainder would be entirely unaffected.

The demurrer to the bill was properly overruled, the other grounds of demurrer, not noticed, being manifestly bad and untenable.

We have examined the testimony as to the signing of the mortgage executed to Blackwell by the makers, Orr and wife, and the question as to its satisfaction or payment. Our opinion is, that the mortgagor and his wife signed the paper voluntarily, aud without any fraud, coercion, or undue influence. And the evidence, we think, supports the conclusion of the register as to the amount found to be due.

The foregoing opinion was prepared by Judge Somerville, and adopted by the court.

Affirmed.