123 So. 18 | Ala. | 1929
An executor of the deceased mortgagor may maintain a bill to enforce the equity of redemption of real estate when it would have been available to the mortgagor if alive. Griffith v. Rudisill,
The authorities above cited, and others noted below, point out that in such foreclosure actions the heirs being indispensable parties where land is included, their omission is available on error, without previous objection. Powe v. McLeod,
This is not a bill for foreclosure, nor was there a cross-bill praying for such relief. But it is well known that on a bill for redemption, when complainant offers to do equity, the court may decree a foreclosure without a cross-bill by the mortgagee. Haralson v. Whitcomb,
We think that in decreeing a foreclosure without the heirs or legatees of the deceased mortgagor before the court, there was error. The decree should only have fixed the amount of the mortgage debt, as it did, and authorized a redemption by the executors of decedent; but in so far as it directed a foreclosure it was contrary to the rules we have noted, in the absence of the heirs of the mortgagor.
Section 6149 of the Code authorizes this court on appeal, upon finding error in the record, to render such judgment or decree as the court below should have rendered when the record enables it to do so. Lampkin v. Irwin,
Appellant also called to the attention of this court the condition of the record, as respects the failure to show that the cause was at issue when finally submitted and decree entered, though at issue when the testimony was taken. This condition as a rule leads to a reversal, as the cause should be at issue when final decree is rendered. Smith v. Smith,
We think that, if the parties try the case on pleadings which present their respective theories well understood by all of them, the court should accept the view that the pleadings properly present these theories. Federal Auto. Ins. Ass'n v. Meyers (Ala. Sup.)
After all these years of litigation, during four of which the case was under submission, no attention was given to the amendments referred to; no copies had been served on opposing counsel, so far as the record shows; no new issues or rights were presented by them; and no one was prejudiced by the hearing on the state of the record. We think therefore that we should decline to reverse the decree on that account.
The court was without error in denying appellants' claim for an attorney's fee. It does not appear that such fee had been incurred prior to the filing of this bill for redemption. Only such fees as were incurred prior to the filing of the bill, if any, could be recovered, as there is no provision in the mortgages for attorney's fees for defending a suit of this nature. Lampkin v. Irwin, supra; Lampkin v. Stout,
In Hazlewood v. Walker,
Without reviewing the evidence in respect to usury, we think it amply supports the conclusion of the circuit court that the debt was so affected.
Section 7225, Code, does not take from the equity courts the power to apportion costs. Section 6655; Baker v. Orr,
The complainant and cross-complainants were only partially successful in their contentions. The debt was reduced, but they failed in some of their major controversies. As the debt claimed by the bank was materially reduced, we think, notwithstanding the usury in the debt, the costs of the circuit court (Lampkin v. Irwin, supra), and the costs of this appeal, both in this court and the circuit court, should be equally divided between Ariton Banking Company, the executors of James C. Barnes, and E. R. Phillips, as surviving partner of Barnes Phillips, and it is so directed.
A discretion is reposed in the equity courts to determine whether they will refer the statement of an account to the register for hearing and report. People's Sav. Bank v. Union Bank Trust Co.,
The circuit court will not therefore here be put in error for ascertaining the mortgage debt without a reference. In this case, it would appear that such action was quite appropriate, as all the evidence was taken by deposition, and the issues were ready for final hearing when the submission was entered. This court is not directed in brief to any specific error of the circuit court in fixing the amount of the debt, not herein treated. The other assignments are virtually admitted by counsel for appellants, not to constitute reversible error.
We therefore direct that the decree of the circuit court be modified so as to eliminate from it those provisions directing a sale of the property embraced in the mortgages, if the mortgage debt be not paid as therein directed; and so that the costs of the circuit court be taxed in the manner above mentioned.
As so modified, the decree of the circuit court is affirmed.
ANDERSON, C. J., and SAYRE and THOMAS, JJ., concur.
