121 Ala. 414 | Ala. | 1898
— This is a bill to foreclose a mortgage'. It is filed by the Decatur Land Company, as assignee of the mortgagee, against the mortgagors and their grantees- of the equity of redemption. Certain pleas were interposed by the respondents, Tyson and Ar-rington, which went to the whole bill and in bar of any relief upon it. These pleas Avere nqt set doAvn for hearing as to their sufficiency, nor Avas their legal sufficiency in any other manner tested or attempted to be tested. These pleas were proved. The cause Avas submitted for final decree on them, as Avell as upon the answers, and on the evidence .in support of them. They and the proof of- them Avere disregarded at the hearing on the ground that they Avere Avithout merit, that is, presented no material defense and Avere therefore insufficient in law. There can be no doubt, we think, that this Avas an erroneous vieAv. In- chancery as Avell as at law, if issue be taken upon an immaterial and insufficient plea and it be established by the testimony, the respondent is en
These principles of English chancery pleading and practice relating as they do to a matter as to which no other provision lias been made or principle declared by our statutes or by the rules and decisions of this court, obtain in Alabama, not as positive rules, but as furnishing proper analogies to regulate practice. — Rule 7 Ch. Practice, Code, p. 1203. Their application here is not hindered by the provision of our statute that all defenses may be incorporated in the answer. — Code, § 699. This is permissive merely, for the benefit of a defendant, and he may avail himself of it not as he sees proper. If he does not avail himself of it but pleads independently, his plea stands upon the same footing as if the statutory provision did not exist. And on the other hand, if he does avail himself of it, and incorporates in the answer a plea in form and substance, that is a plea to all intents and purposes as if it had been separately filed, just as a demurrer is none the less a demurrer for being incorporated in the answer, and is, whether so incorporated or not, to be dealt with and disposed of according to the general principles of pleading and practice pertaining to demurrers. And there is the more reason for this court to adopt the rule in chancery that a cause may be as effectually tried and decided upon a false issue, in that
By analogy alike to the statutory rule dispensing with replications to answers (Code, §701), and to the rule obtaining at law that in the absence of a special replication to a plea the other party is held to have taken issue upon it, it must be held, and indeed has been held by this court, that in such case — the case of a plea to a bill in equity and a submission for final decree upon the plea either alone or along with other defenses — the complainant silently takes issue on the plea; and that is the case now before us.—Forrest & Wife v. Robinson Extr., 2 Ala. 215; American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 178, 192.
Our conclusion, therefore is that complainant having taken issue on the pleas of the defendants Tyson and Arrington, which went to the whole bill, and the facts laid in those pleas having been proved, the bill should have been dismissed as to Tyson and Arrington, whether the pleas were in the abstract good or bad. The decree of the chancery court granting relief will be reversed, and a decree will be here entered denying relief and dismissing the bill as to the defendants Tyson and Arring-ton. As to the other defendants the decree is affirmed. •
Affirmed and reversed and rendered.