4 Div. 891. | Ala. | Oct 14, 1920
The bill as amended, while charging fraud and misconduct on the part of the husband of the respondent, A. E. Sollie, who was of counsel for the complainants in the procurement of a decree in a former cause in giving the Oates mortgage priority and in failing to properly prosecute their claim, does not seek to repudiate or review the former decree adjudging such priority, but merely asks an interpretation and enforcement of same, upon the theory that there are obstacles against the enforcement of same, in that the cause was dismissed by the court for want of prosecution after the rendition of and a finality of said decree, but before a sale for the enforcement of same. Indeed, counsel for appellees, with commendable candor, admit in their brief that application for a bill of review was not made within the time required by section 3178 of the Code of 1907, and, while charging fraud on the part of complainants' former counsel in giving the Oates mortgage priority, concede that the decree so rendered should be enforced, and ask for an execution of same, that is, a sale of the land for the satisfaction of the complainants' lien after first satisfying the claim due Mrs. A. E. Sollie as purchaser or assignee of the Oates mortgage. The authority of a court of equity to enforce its judgments or decrees when obstacles have arisen since the rendition of same is well *524
recognized, and is usually invoked by a bill for that purpose. Griffin v. Spence,
The decree settling the equities of the parties and granting the complainants relief was rendered September 10, 1908, and the subsequent dismissal of the bill by the court for want of prosecution some years thereafter, but before the final execution of the decree, did not vacate or annul same (Ex parte Gist,
It is insisted by the appellants' counsel that the former decree, in effect, not only adjudged the Oates mortgage as being a superior lien upon the land, but operated as a confirmation of the sale thereunder, thus clothing Mrs. A. E. Sollie, the purchaser, with an absolute title to the land, subject only to the statutory right of redemption, which has not been appropriately exercised. There are expressions in the decree, which the bill avers was drafted by M. Sollie, the respondent's husband, and who was at the time attorney for the complainants, which not only give the Oates mortgage priority, but recite in effect that Oates is entitled to hold any and all rights he has in and to said lands, "he and his assignee, under and by virtue of said mortgage and the foreclosure thereof." If this was all, it would doubtless appear that the decree attempted to confirm the foreclosure sale; but, when it is considered in its entirety, and the subsequent part thereof, ordering a sale of the land for the enforcement of the complainants' lien, subject to the Oates mortgage, the only reasonable construction that can be given same is that the complainants are entitled to relief, have an enforceable lien on the land which is ordered sold, and the proceeds are to be applied, first, to the payment of the debt due upon the Oates mortgage, and then to the demand of the complainants. To hold that the decree confirmed the sale under the Oates mortgage would put the chancery court in the attitude of having done a vain and useless thing by granting the complainants relief and ordering the property sold, for if the sale under the Oates mortgage was confirmed, there was nothing to sell for the satisfaction of the complainants' claim. Moreover, if the decree expressly confirmed said mortgage sale, such action was not warranted by the pleading; for the former bill, even as last amended, while recognizing the superiority of the Oates mortgage, made no allusion to the foreclosure sale thereunder, and did not request or concede a confirmation of same; and, while Oates filed a short answer setting up a sale of the property subsequent to the filing of the bill, he did not, by cross-bill or otherwise, seek a confirmation of said sale.
We therefore hold that the former decree simply granted complainants relief, ascertained the amount of their claims, including a reasonable fee for their attorney, M. Sollie, and directed the register to sell the property after default in the payment of said decree, and directed payment out of the proceeds, first, to what was due upon the Oates mortgage, and the residue to the satisfaction of complainants' claim. The foreclosure of the Oates mortgage was made after the complainants' bill was filed, and A. E. Sollie, the purchaser, was charged with notice of the lis pendens, and cannot claim that she was innocent of the complainants' right to have their claims decreed as prior ones, or of the right to satisfy and liquidate the Oates mortgage, even if a prior claim, in order to enforce their lien.
Counsel for appellants also insist upon error as to the overruling of their demurrer to so much of the bill as seeks to make Mrs. A. E. Sollie account for rents. We find nothing in the bill charging her with the collection or reception of rents, or claiming that she should account for same, except in the prayer, and in the absence of averment and proof to establish a claim or demand a prayer therefor availeth nothing, and the appellants can take nothing by their demurrer, which merely goes to a portion of the prayer of a bill not supported by averments in the body of same.
The trial court did not err in overruling the demurrers of the bill of complaint, and the decree is accordingly affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.