132 Ala. 193 | Ala. | 1902
— The title of the mortgage company through its mortgage executed by Charles E. Tait in 1888 is a perfect title, evidenced by muniments in all respects regular and valid, as -against the deed executed by said Charles ¡to Narcissa Tait in 1899. The deed is, therefore, not a cloud on complainant’s title, and the present bill has no equity to a cancellation of it -as a cloud on title.
Whether the bill has equity to ithe end of subrogating the complainant to the lien of the mortgage executed by Charles E. Tait io the Joneses, and which mortgage was paid off by complainant, depends upon whether it avers that the mortgage executed by mid Charles E. to Narcissa Tait, which was secondary to the Joneses’ mortgage, was at the time of the execution of the mortgage to complainant, a subsisting encumbrance on the land, -and entitled to priority of satisfaction apart from the doctrine of 'subrogation. We find no such averment in the bill. It does appear by the bill that on the same day Charles E. Taiit executed the mortgage to the Joneses, he also executed a mortgage to Narcissa Tait subject to the lien of the Joneses’ mortgage, that said mortgage to Narcissa Tait was duly recorded in the office of the judge of probate prior to March 5ith, 1887, that on the day just named James T. Beck -made the following entry -on the record of said mortgage: “This mortgage is satisfied in full and so entered by me on the authority of Mrs. Narcissa Tait, mortgagee. This 5th- March, 1887. J. T. Beck. Authority pasted herein;” that the “authority” under which Beck acted
But it is insisted that it -can be amended in the particular we have been discussing so as to give it equity, and that, therefore, the motion to dismiss for the want of equity should not be granted. ITow do we know it can be so amended? How can we say that complainant h'ould truthfully allege that the satisfaction of the mortgage was unauthorized? There is absolutely nothing in the hill as it stands that carries any assurance
It is contended for appellee that the infirmity of the bill which we have been considering is cured by what is called the admission of the answer. Such an infirmity 'can never be -cured by the answer. An answer may admit averments in a bill -so as to. relieve the complainant of the burden of pi’oving them, but its allegations can never supply jurisdictional averments omitted from the bill, it can never inject equity into a bill which has none on its own allegations. Neither statements in an answer nor proof of necessary facts can warrant -relief unless such facts are averred in the bill: Proof in any form is as abortive without necessary averment in the bill as the failure to prove necessary averment. Moreover, the answer here contains no admission of any -averment of the bill -as to the entry of satisfaction on the record of the mortgage being unauthorised and null, for, as we have seen, there is no such averment in the bill. It does not contain a statement that the entry was not authorized by Mrs. Tait and the answer is sworn to; but as this was not an admission of an averment in the bill, the statement -as pleading is of no value to complainant, and -as the answer is not mentioned in the note of testimony, nor even in the order of submission, it is no evidence of that fact; and no
We are of opinion that if complainant can allege and prove that the entry of satisfaction on the mortgage record was unauthorized and nugatory, it would be entitled to the satisfaction prayed for on that and the other averments of the bill and evidence shown by this transcript.—3 Pom. Eq. Jur., §§ 1211, 1212; Faulk v. Galloway, 123 Ala. 325.
The chancery court erred in its decree granting the relief. The bill «hold have been dismissed for want of equity. The decree below will be reversed; and in the exercise of our statutory discretion to render the decree the lower court should have rendered or to remand the cause, we adopt the latter course. Let the cause be remanded.
Reversed and remanded.