| Ala. | Jun 15, 1838
— The view which we take of this case,
The canse has been pending in our courts fourteen years. It was before this court in the year eighteen hundred and twenty-eight, when a decree was made reversing the decree which had been rendered in the Circuit court, and remanding the cause for further proceedings — (1 Stew., 566" court="Ala." date_filed="1828-07-15" href="https://app.midpage.ai/document/gayle-v-singleton-6531406?utm_source=webapp" opinion_id="6531406">1 Stewart, 566.) The cause was again heard in the Circuit court, anil the bill dismissed, from which a writ of error is prosecuted to this court.
The bill is filed to foreclose a mortgage on a number of negroes, which it is alleged had been executed by Matthew Gayle, to the plaintiff. After the death of Matthew Gayle, the negroes so mortgaged were sold, subject to the mortgage of the plaintiff, and purchased by Mary Gayle, widow of Matthew Gayle, deceased. Before the finding of the bill, Mary Gayle had also departed this life. It is our opinion, that her representative is a necessary party in this cause, to protect the interest of creditors, and that without making such party, no decree can be had in the cause — (4 Porter’s Rep. 245.) The executor of Billups Gayle, should also have been made a party, as the record discloses that one of the negroes purchased by Mary Gayle is in his possession, as the executor of Billups Gayle.
It is true, as a general rule, that a bill will not be dismissed for want of proper parties; but as no final decree can be made in the cause until the parties are all before the court, — if after the objection is made for want of proper parties, the complainant neglects or refuses to make
The decree of dismissal is sustained on another ground: there is no proof whatever in the record, of the execution of the bond and mortgage. Indeed, it does not appear that either the bond or mortgage have ever been produced in the cause. The bill contains, as exhibits, two instruments, which are alleged to be copies of the originals, and it is stated that the originals will be produced on the trial.
It is, however, supposed by the complainant’s counsel, that the bond and mortgage are proved by the report of the master, which is in these words: “Additional report, made 8th March, 1828 — Richard Singleton, by virtue of the claims contended for in the bill filed in this cause.
“Principal, $1100
“ Interest to 8th March, at 7 per cent, 1276 91
As the record in a chancery cause must show affirmatively all the evidence necessary to sustain it, it follows that this cannot be received as proof of the execution of the bond and mortgage: it does not profess to be any thing more than a mere calculation of the amount due at the time of making the report, and cannot be received as
If the language of the master had been such as to warrant the belief, that the bond and mortgage had been produced before him and proved, it would be sufficient; but we do not understand from his report, that he intended any thing more than a mere calculation of interest.
But this report, such as it is, was made before the reversal of the cause in this court in eighteen hundred and twenty-eight, which reversal was founded in part on this report of the master. It cannot, therefore, be now considered for any purpose.
It is maintained by the counsel for the plaintiff in error, that the statute making any instrument of writing, whether under seal or not, evidence of the debt or duty for which it was given, unless its execution is denied on oath, — applies to this case, and dispensed with the necessity of further proof.
We are of opinion, that the act does not apply to suits in chancery. The law regulating proceedings in chancery, (Aik. Dig. 288,) declares that “ before a decree is pronounced on a bill taken pro confesso, the court shall be satisfied by sufficient evidence of the justice of the complainant’s claim or demand — As in the analagous case at law of a judgment by default, no proof would be necessary, it follows very conclusively, that it was not intended the act should apply to suits in chancery. —(See the ease last cited.)
It is also insisted, that the admission by John Gayle, administrator of Matthew Gayle, of the justice of the
The answer of John Gayle, if proof against him, is not proof against them. No rule of chancery is more conclusively settled, than that the answer of one defendant in chancery, cannot he read against another. With as little plausibility can it be contended that the notice which Mary Gayle had of the existence of the mortgage, at the time of her purchase of the negroes, will operate as an admission, and bind those claiming under her. Notice of the existence of a lien, will surely not supersede the necessity of proving the lien, when it is attempted to be enforced.'
The complainant’s counsel insists, that those in possession of the negroes, may be considered as executors de son tort of Mary Gayle. If it were true, that their acts would subject them to liability as such, they are not sued in that character; therefore, no decree can be had against them as such — (Toller’s Law of Ex’rs, 36, 37; 4 Munf. 143.)
It is also insisted, that as John Gayle admits that he has three of the mortgaged négroes in his possession, a decree may be made against him for them, as the administrator of Matthew Gayle. By his answer, he shows that he claims two of them by purchase from Levin Gayle, who purchased them from Mary Gayle:
In addition, it must be remarked, that as John Gayle claimed two of the negroes in his possession, by virtue of a purchase from Levin Gayle, who had purchased from Mary Gayle, no decree could be had against John Gayle, without making the legal representatives of Mary Gayle parties to the suit.
In a case circumstanced like this, it was improper to dismiss the bill generally, — it should have been dismissed without prejudice to any suit the plaintiff may hereafter think proper to institute.
The decree of the court below, must therefore be so far modified, as to dismiss the plaintiff’s bill, without prejudice to any suit he may hereafter institute. The complainant must pay the costs of this court, and of the court below.