73 Ala. 282 | Ala. | 1882
— The present bill is filed for the enforcement of a vendor’s lien, the parties defendant being the .heirs of Ray and Thompson, who were vendees of the land, under an order of sale made by the complainant, Randle, in the year 1868, as the administrator of the estate of one Carter, and
This appeal is taken from the last decree, but--the assignments of error are based on the first decree, upon the theory that it was interlocutory and not final in its nature. The motion is now made to strike out these assignments on the ground that the decree of September 3, 1881, was final, and that, more than one year having elapsed since its rendition, it was barred at the time the appeal was taken. This is the first question which is presented by the record for our decision.
It is often said that ■ appellate courts will not undertake to review litigated cases hy piecemeal. It-is the policy of the law to prevent a multiplication of law-suits by the unnecessary splitting up of actions, the encouragement of which tends to a burdensome accumulation of costs, and a vexatious delay of justice. The spirit of our decisions, in full accordance with .this principle, is strongly in favor of the doctrine, that, as a general rule, there can be but.one final decree upon the merits of any one cause, settling the' equities and adjudging the rights of the parties litigant, and that a decree which goes to this extent is final, although the cause is still in progress, and a reference to the register may be necessary in order to ascertain facts for an account between tile parties. — Jones v. Wilson, 54 Ala. 50; Bradford v. Bradley, 37 Ala. 453; Garner v. Prewitt, 32 Ala. 13. It is said by Mr. Freeman that the general rule, recognized by the courts of the United States, and by the courts of most, if not all of the States, is, that “no judgment or decree will be regarded as final, within the meaning of the statutes in reference to appeals, tmless all the issues of law and of fact necessary to be determined were determined, and the case completely disposed of, so fa/r as the coivrt had power to dispose of it.” — Freeman on Judg. (3d Ed.) § 34.' In the case of Martin v. Grow, 28 Texas, 614, it is said : “ When the whole of the matter in controversy is finally disposed of as to all the parties, then there is a final judgment, and not before, from which an appeal or writ of error can be taken.”
We are cited by appellee’s counsel to two or three adjudged cases, holding the doctrine that a decree may be final as to one of several defendants, whose interests are not at all connected with each#/ other, although the cause may still be pending in court as to-the others. Rut these authorities are opposed to what has been considered the uniform practice in this State from the earliest history of^our system of equity jurisprudence, and the doctrine established by them can not be regarded as sound and tenable,dinless, perhaps, in the class of exceptional cases to which we have above alluded.
The motion to strike out the assignments of error must be overruled, the decree of September 3d, 1881, being interlocutory and not final.
It is further insisted, if the assignments of error be permitted to stand, that the demurrer was properly sustained on the ground of misjoinder and multifariousness. The rule as to parties in the present proceeding is obviously analogous to that prevailing in ordinary foreclosure suits. • The general rule, in such cases, is. settled to be, that adverse clairncmts can hot be made parties for the purpose of litigating their title in a court of chancery. “The only proper parties are the mortgagor and mortgagee, and those who have acquired any interests from them subseqoieod to the mortgage. An adverse claimant is a stranger to the mortgage and the estate. His interests can in no way bo affected by the suit, and he,has no interest in it. There being no privity between him and the mortgagee, the latter can not make him a party defendant for the purpose of trying his adverse claim in the foreclosure suit.”' — 2 Jones on Mortgages, § 1440; Banning v. Bradford, 21 Minn. 308 ; s. c. 18 Amer. Rep. 398 ; Dial v. Reynolds, 96 U. S. 340. This rule has been held to include adverse prior encumbrancers also,
This principle is evidently based upon the theory that a court of equity has no jurisdiction to try the validity of mere legal titles, which have no privity of derwaUoh or connection with that of the mortgagor or mortgagee, but is independent of and paramount to it. Hence, in our opinion, it shou'ld be confined to such adverse claims of title as were derived from the mortgagor or mortgagee anterior to the date of the mortgage, or from a stranger either prior or subsequent to such time. The following rule, stated by Chancellor Walworth, seems to have received the general concurrence of the courts, so far as I have been able to discover. In the case of the Eagle Fire Co. v. Lent, 6 Paige, 637, he says : “ So far as mere legal rights are concerned, upon a bill of foreclosure, the only proper parties to the suit are the mortgagor and mortgagee, and those who have acquired rights or interests under them subsequent to the mortgage. And the mortgagee has no right to make one who claims adversely to the title of the mortgagor, and prior to the mor'tgage, a party defendant for the purpose of trying the validity of his adverse claim o'f title in this court.” — Corning v. Smith, 6 N. Y. 82; Chamberlain v. Lyell, 3 Mich. 448; Holcomb v. Holcomb, 2 Barb. (N. Y.) 20; Pelton v. Farmin, 18 Wis. 222; Wright v. Dudley, 8 Mich. 115; Barbour on Parties, 493.
The claim of the demurrants is shown to be based on a tax-title acquired in the year 1873, several years after the sale of the. land, and, therefore', after the creation of complainant’s lien for the purchase-money. The important fact is, that it was not anterior to this date. It may be true that a purchaser at a valid tax-sale acquires not only the interest or right of the owner of the-land to whom it is assessed, but a good title to the land itself, free from the claims of all .persons. — Burroughs on Tax. § 122, p. 346 ; Jones v. Randle, 68 Ala. 258. Yet it can not be assumed that the mortgagor was not the owner of a food and perfect title, in the absence of proof to the contrary. t is very certain also that, as the greater always includes the less, a claimant under a tax-sale, after the excution of a mort
The other questions argued do not properly arise under the demurrer, but have reference to the merits of the case in other aspects, as to which the chancellor has made no ruling.
Reversed and remanded.