Truss v. Miller
116 Ala. 494
Ala.
1897
Check Treatment
BRICKELL, C. J.

The correction by amendment, at any time before final decree, of insufficiency or of error, in the allegations or prayer of a bill in equity, is matter of right secured by statute. — Code of 1886, § 3449. The limitation of the right is, that by amendment, an entirely new case may not be made; nor, what is essentially the same thing, a radical departure from the cause of action as stated in the original bill; nor an entire change of parties plaintiff or defendant.. Within this limitation, all errors of omission or commission are curable by amendment. • The theory of the demurrer to the original bill was, that the purpose of *504the bill was the foreclosure of the mortgage to Williams, to secure the payment of the purchase money of the lands in controversy; the mortgage debt having been purchased by the plaintiff, one of the debtors and promissors, thereby extinguishing it. If the correctness of this theory was conceded, the error was in the prayer of the bill for the foreclosure of the mortgage. The bill stated the relations of the parties, and their relations to the lands — the joint purchase from Williams by the plaintiff and Clarkson, the making of a joint note for the purchase money, and the execution of the mortgage to secure its payment; the subsequent sale to Bass, by Clarkson and the plaintiff, -of an undivided one-third interest in the lands, the conveyance to him, and the taking of his note for a part of the purchase money, payable to the plaintiff and Clarkson, which was unpaid; the purchase by the defendant Truss, at execution sale, of Bass’ interest in the lands, and his subsequent assertion of right and interest. These were the allegations of the original bill, retained and repeated in the amendment. In no proper seiise, may it be said, the amendment departed from the original bill, or has any element of a new case. The combination of facts from which the right of the plaintiff to' equitable relief arises are unchanged; the relations of the parties are not varied; the enforcement of a lien on the lands for the payment of the purchase money due from Báss is relief of the same kind and nature which would have been obtained if the prayer of the original bill for the foreclosure of the mortgage is conceded to have been inappropriate ; a question not now involved. Nor is there force in the objection, that the original bill was for the foreclosure of a mortgage, and by the amendment it is converted into a bill to enforce the equitable lien of a vendor of lands. — Moore v. Alvis, 54 Ala. 356; Pitts v. Powledge, 56 Ala. 147; Adams v. Phillips, 75 Ala. 461; Bolman v. Lohman, 74 Ala. 507. The material, controlling inquiry, in determining whether an amended bill makes a new casé, or essentially departs from the case made by the original bill, is, whether the allegations of fact setting forth the right and title .of the plaintiff, and the wrong or liability of the defendant, are changed, and for them other facts substituted from which the right to relief is deduced. The combination of facts constituting the cause of action, and from which plaintiff *505deduces the right to equitable relief, is not varied — the facts form the gravamen of the original and of the amended bill.

2. The demurrer on the ground of multifariousness was property overruled. It is said, that multifariousness, as an objection to a bill, is not capable of an accurate definition. It is described generally, as the joinder of distinct and independent matters, thereby confounding them ; or the uniting in one bill of several matters, perfectly distinct and unconnected against one defendant; or the demand of several matters of a distinct and independent nature against several defendants in the same bill. — Story Eq. PL, § 271. When, as in the present case, the objection is, that distinct and unconnected matters are joined against several defendants, it is not necessary that all the parties should have an interest in all the matters of controversy; it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others. — Story Eq. PL, § 271a; Kennedy v. Kennedy, 2 Ala. 609; Larkins v. Biddle, 21 Ala. 252; Fleming v. Gilmer, 35 Ala. 62; Randle v. Boyd, 73 Ala. 282; Bolman v. Lohman, 74 Ala. 507. The principal subject matter of suit is the land, and the primary controversy is, whether the defendant Truss, by his purchase at execution sale, acquired an interest in it, freed from all liability to subjection to be charged by the mortgage to Williams, and from the lien for the purchase money due from Bass. Conceding that he is without interest in, or connection with, the equities existing between the plaintiff and the defendant Clarkson, if there is right to subject the lands, he is a necessary, indispensable party, and without his presence a decree can not be rendered quieting the litigation. If the lands be subjected, the moneys derived from the sale of them, must be applied to reimburse the plaintiff the moneys he paid Williams, in discharge of the debt due from him and Clarkson, relieving Clarkson to that extent, from the duty and liability to make contribution. It would lead to a multiplication of suits, embarrassing the administration of justice, the land being the principal subject of controversy, if all the rights and equities of the parties, growing out of a series of transactions connected with it, were not capable of determination in a single suit,

*5063. It can not be doubted that Clarkson is bound to pay to the plaintiff his pro rata and just proportion of the joint debt of himself and the plaintiff to Williams for the original purchase, which the plaiutiff acquired before maturity. The relation of joint promissors for a common debt is, that each is principal for his own share of the debt and surety for the other .for the balance; but as to the common creditor, they are both principals.— Owen v. McGehee, 61 Ala. 440; 1 Brandt on Suretyship, § 38. The satisfaction by.one of the common burden, ■whether before, or at, or after maturity, brings the other under duty to contribute to the one thus paying the debt an equitable proportion of the amount required for its discharge. — 1 Story’s Eq.. Juris., §§ 493-495. Of course the parties making a contract have a right to stand upon its terms, and hence a payment before maturity by one of two joint obligors or promissors, without adoption and agreement by the other, would give no right of action until the maturity of the debt, nor could the amount of the liability exceed the full share of the debt. The effect of the payment by the plaintiff of the common debt of himself and Clarkson to Williams before 'maturity, was an equitable assignment to plaintiff as against Clarkson of the security (mortgage) held by the creditor, for the portion of the debt for which the plaintiff stood as Clarkson’s surety. The plaintiff would have this much by subrogation to Williams’' position as a creditor of Clarkson as principal, with the plaintiff as surety for him. And the act of the creditor in transferring the note to the plaintiff and in leaving the mortgage uncancelled upon the record did no more than to preserve the vitality of this unquestioned light of the plaintiff as a surety for Clarkson. — 3 Pom. Eq., § 1221; Knighton v. Curry, 62 Ala. 404; Sawyer v. Baker, 72 Ala. 49; Newbold v. Smart, 67 Ala. 326.

4. While it may be undoubtedly true that under our decisions, had there been no notice of the plaintiff’s right, until after the levy of Truss’ execution on the land purchased by Bass, or the creation of the lien thereon by placing an' execution in the hands of the sheriff, the right of Truss would be superior to the right of the plaintiff, (McMillan v. Preston, 58 Ala. 84; Walker v. Elledge, 65 Ala. 51; Dickerson v. Carroll, 76 Ala. 377; Code of 1886, § 1846) ; yet, if Truss had actual, or con*507structive, notice of plaintiff’s equity, which is superior to any right in Bass, at least to the extent of the latter’s debt for the land claimed as his, it is evident that Truss, who is only a creditor of Bass and.standing in his shoes, can not complain that Bass’ land is subjected to the lien resting on it for the purchase money. The question then is, whether Truss can be said to have had notice of plaintiff’s equity. One link in the chain of Bass’ title was the conveyance from Williams to plaintiff and Clarkson. Bass had to claim through this title and, of course, he and Truss, as his creditor, had the mortgage of Ciarkson and Miller to Williams staring them in the face, unsatisfied upon the records. — Shorter v. Frazer, 64 Ala. 74-81; Marks v. Cowles, 61 Ala. 307; Johnson v. Thweat, 18 Ala. 741; Witter v. Dudley, 42 Ala. 616; Campbell v. Roach, 45 Ala. 667. And this imputed notice is incapable of being explained away or rebutted, and will prevail against a positive denial of notice in a verified answer.— 2 Lead. Eq. Cases, 189. The record informed Truss, before he obtained his judgment, that Bass’ land was subject to this unsatisfied mortgage given to secure the note taken up by the plaintiff. It can not be doubted, and it must be presumed, that if Truss had inquired of the mortgagors, or the mortgagee, he would have been fully informed as to the entire transaction. Good faith required him to have pursued this inquiry. The mortgage was a charge upon the Bass land to the extent of Bass’ debt for his purchase. If Bass had discharged the mortgage to Williams he would have had no recourse upon the covenants of warranty in his deed, except for the surplus above his own debt to his vendors. An inquiry made of Williams about the unsatisfied mortgage, would have revealed the fact’that the plaintiff had taken up the debt before maturity, and that the note had been transferred to him. And an inquiry of the plaintiff would have disclosed his equitable right to the mortgage as a security, and that the Bass land had not been paid for, and' that Bass had no right to claim it to be freed from the mortgage until he paid for it. We can not doubt that such would have been the result of any inquiry made respecting the title, nor can we doubt that the unsatisfied mortgage to Williams was sufficient to put Truss upon .inquiry of Bass’ connection with the title and his right to the land purchased by him. Whoever *508is put upon inquiry is fully informed, unless he shows that inquiries are unavailing. — 16 Am. & Eng. Encyc. of Law, 792-795; McGehee v. Gindrat, 20 Ala. 95.

Our conclusion is that Truss, as a creditor of Bass, can not claim to be exempt from the plain equities against the land purchased but never paid for by Bass. The execution of the warranty deed to Bass gave him no right in equity to resist the mortgage to Williams, still alive after Miller’s payment, until he had paid for the warranty. He could insist upon no relief, except upon the condition of paying his own debt, which he has never done. Truss, as succeeding to Bass’ title, can assert no greater rights to an estoppel from the warranty deed to Bass than he could himself. Estoppels are mutual and co-extensive, and any privy succeeding to. the estoppel of another only succeeds to it as possessed by the party he represents. So that Truss, claiming the benefit of the deed and covenants to Bass, as relieving his property from the Williams mortgage, is barred, as Bass was, from asserting such estoppel until the purchase money of the land is paid.

5. There is no force in the insistence, that the plaintiff’s demand against Clarkson for contribution is barred by the statute of limitations. The common debt to Williams did not mature until the 3d day of December, 1887, and until its maturity the liability of Clarkson to contribute did not arise. The prior purchase of the note by the plaintiff, while it created the liability, did not hasten the day of payment, as that was expressed in the contract into which the parties had entered. Besides, it is shown that Clarkson made a payment on the debt in January, 1888. The original bill was filed in less than six years after the maturity of the- common debt, and after the partial payment. The demand has in it no element of an open account, suits on which are barred in three years, and is subject only to the bar of the statute of six years.

We find no error in the record, and the decree of the court of chancery must, be affirmed.

Affirmed.