Scheerer v. Agee

| Ala. | Nov 15, 1896

MoCLELLAN, J.

The rights of complainant, Agee, were held on the former appeal in this cause to be those of an equitable owner pro tanto of the bonds held by Scheerer secured by a mortgage on the property of the Cloverdale Land & Development Company; and his bill was then adjudged to be without equity for that it did not appear therefrom that the law day of said mortgage had passed when this suit for foreclosure thereof was commenced. The decree then presented for review was reversed, and complainant was given time within which to amend his bill in the particular referred to, if the facts admitted of such amendment.-Scheerer et al. v. Agee, 106 Ala. 139" court="Ala." date_filed="1894-11-15" href="https://app.midpage.ai/document/scheerer-v-agee-6516014?utm_source=webapp" opinion_id="6516014">106 Ala. 139, 153-4.

The amendment then held to be necessary has not been made, but, to the contrary, it how appears on the abstract that the facts did not admit of it: the mortgage had not matured at time of bill filed.

The necessity for the amendment in question is, however, sought to be avoided by another amendment, made since the former appeal, to the effect substantially that Scheerer has meantime taken a conveyance of certain lands in satisfaction of the debt as collateral to which he held said bonds ; or, in other words, has converted the bonds, of which complainant was equitable owner in part, into this land, the averment, more particularly, being that he surrendered said bonds to the mortgagor to be cancelled in consideration of a conveyance of said land, which was a part of the property embraced in said mortgage, to him. The prayer of the bill was also amended by substituting for the whole of the original prayer, except that part of it which asked general relief, a prayer for the subjection of said land as the property of Scheerer to the payment of complainant’s demand or claim.

We do not think this amendment meets complainant’s exigency at all. It is not a question as to his abstract right to reach and subject the land at this time, but "whether he had any right to thus or in any manner reach and subject it at the time the bill was filed. And that he then had no such right — the land at that time belonged to the mortgagor, the law day of the m'ortgage not having transpired, and complainant at most being the owner of bonds secured by the mortgage running to maturity — is, we think, entirely clear. It may be admitted that had the facts averred in this amendment existed at the time the bill was filed, complainant could have sought and had the relief he now prays. It may be also admitted that although the conversion of the bonds into the lands securing their payment occurred subsequently to the filing of the original bill and subsequent to the several former amendments thereof, the complainant was entitled to further amend his bill and subject the lands as the property of Scheerer, if the original bill when filed contained equity. But neither of these concessions will avail the complainant. The facts averred in the amendment did not exist when the bill was filed, nor did the bill when filed contain equity. So far as complainant's abstract rights are concerned, it was then a bill to foreclose a mortgage securing bonds equitably owned by the comjolainant. It lacked equity, as we have seen, in that it did not aver that the mortgage had matured. Equity cannot be injected into it now by the averment of facts of a supplemental nature, not existing at the time of the filing. This principle is so obviously sound and so well supported by our former adjudications that we deem it necessary only to refer to the cases.-Planters’ &c. Ins. Co. v. Selma Savings Bank, 63 Ala. 585" court="Ala." date_filed="1879-12-15" href="https://app.midpage.ai/document/planters--merchants-mutual-insurance-v-selma-savings-bank-6510485?utm_source=webapp" opinion_id="6510485">63 Ala. 585, and cases there cited; Park v. Lide, 90 Ala. 246" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/park-v-lide-6513958?utm_source=webapp" opinion_id="6513958">90 Ala. 246; Freider v. Leinkauff, 92 Ala. 469" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/freider-v-lienkauff--strauss-6514293?utm_source=webapp" opinion_id="6514293">92 Ala. 469.

The demurrers to the bill as amended, and the motion of the several respondents to dismiss for the want of equity, proceeding on the ground that the amendment presented a new case, should have been sustained. The decree overruling said demurrers and motions is reversed ; and, as the present bill cannot be now amended so as to present a case for equitable cognizance and relief, a decree will be here entered sustaining said demurrers and motions, and dismissing the bill, but without prejudice to complainant’s right to file another bill, if so advised.

Reversed and rendered.