Walker v. Bank of Mobile

6 Ala. 452 | Ala. | 1844

COLLIER, O. J.~

-1. The bill as originally filed, was framed against the mortgager alone; and bis answer, stating that he had conveyed to the mortgagee, his entire interest in the mortgaged premises, and disclaiming all right to the same, doubtless suggested the propriety of making the heirs of the mortgagee parties. Accord.ngly an order was made in genera] terms, giving the complainant “leave to amend by making additional parties;” and without filing a bill for that purpose, an addition was made at the end of the statmg part of the bill already before the court, as follows, viz: “That the said Hitchcock has since deceased, and that Isaac H. Erwin has taken out letters of administration of said estate, and that the said Hitchcock, at the time of his death, left Ann Hitchcock his widow, and Caroline, Henry, Ethan and Andrew, his children and heirs at law.” The bill itself does not show that the heirs of the mortgagee, have any interest.in the matter in controversy, but it expressly alleges that the muitgagee indorsed four of the notes, and transferred the mortgage to the complainant. Whether the allegation in Walker’s answer, that he had conveyed all his interest in the mortgaged premises to the mortgagee, who took possession and died seized thereof would be regarded as evidence of the fact on the hearing, we need not inquire. There was no attempt to disprove it, but the complainant, in order to obviate the objection of the want of proper parties, inserted in his bill the name of the mortgagee’s wife and children, and proceeded against them as defendants to the bill; and the question is, whether the amendment was so made as to effect the object proposed.

If the mortgagee indorsed the notes and assigned the mortgage in question, prima facie, he would not (if liv.ng) be a necessary or even a proper party to a bill for its foreclosure; and a bill which joins his heirs under such circumstances, should contain suitable allegations, showing that their interests would be effected by the decree; and praying process of subpoena against them. This results from the rule that, requires a plaintiff to state his case with such certainty and precision, as to show not only that he has a good cause of complaint, but upon what grounds he is asking relief against each one whom he has made defendant. The bill should be complete in itself, and so state the case, that the court may see what it is necessary to prove, and what decree maybe rendered — its defects cannot be supplied by the answers or other part of the record. Applying these .principles to the bill, and it will be seen, that the names of the mortgagee’s real representatives are inserted, although the case stated shows that they have no interest; and further, that they cannot be regarded as parties, because there is no prayer to charge them as such, or process prayed against them.

But, for the answer of Walker, disclaiming all right to the mortgaged property; and averring that he had conveyed it to the mortgagee, and the attempt to br.ng the hems before the court by an amendment, we should perhaps be author zed to render such a decree as the cuse requ.red, w.thout having any regard to them. In fact, if it were not for the answer, it would be qu.te immaterial, whether they were made parties or not; if om.tted, the bill we have seen, would be regular, and as a decree m.ght, upon the case stated, be so rendered as to do just.ee to all the parties, theif misjoinder would not be regarded at the hearing, or on error, unless the objection had been previously taken. [Story’s Eq. Plead. 203, 232.] Immaterial, we mean so far as respects our action upon the record; for the interests of the mortgagees’heirs, if they have any, would not be divested by a decree to which they were not parties.

It follows, from what has been said, that the bill is defective in the particular we have been considering. 1. In not showing the interest of the heirs by proper allegations. 2. For the want of a prayer for relief and process against them. [Walker, et al. v. Hallett, 1 Ala. Rep. 387; Story’s Eq. Pl. 43-4.]

2. In Walker, et al. v. Hallett, ut supra, it was determined that non-resident infant defendants must be notified of the pen-dency of the suit, by publication, as in the case of adults; if above the age of fourteen, they should be consulted in the appointment of a guardian ad litem, where it can be done without too much trouble and expense, of which the chancellor must judge: Further, the court may appoint guardians ad litem to non-resident infants, but such guardian should not be appointed in any case, until after service of process or publication.

The rules for the regulation of the practice in chancery, require that infants residing beyond the limits of this State, may be made parties defendants by publication, and sending a copy of the order to their parents or either of them, “if in life,” and in case of death, upon the natural guardian of such infants. [Rules 3, 40, 41, Clay’s Dig. 612-16-17.]

The appointment of Erwin as a guardian ad litem to the infant heirs of the mortgagee was made simultaneously with the order of publication; and was irregular, whether considered with reference to the case cited, or the rules of practice. It is needless to be more explicit upon this point; for if regard is had to our decisions, there will be no difficulty in avoiding error in the preparation of the case for hearing against the infant defendants. It was entirely competent for the court of chancery in its discretion to have rescinded the order appointing Janies a guardian ad litem.

3. The second section of the act of 1805, “empowering courts of equity to proceed ag; inst absent defendants” — Clay’s Dig. 353, §45, provides that the complainant, before obtaining a decree against a non-resident defendant, who has been brought in by publication, shall give good and sufficient security, in such sum as the court may direct, to abide such order touching the restitution of the estate or effects to be affected by such decree as the court may make concerning the same, on the appearance and petition of the defendant, to have said cause reheard, &c.” There can be no question that a bond taken under this act, should be made payable to all the non-resident defendants, and the omission of one of their names in the teneri, was doubtless a mere mistake, as indicated by the condition reciting all their names, and providing for the performance of the same duty in favor of each of them. Whether the defect in the form of the bond, is of such a character as would authorise a reversal of the decree, we need not consider, as it will not probably again occur.

4. In Cullum, et al. v. Batre’s ex’r, [2 Ala. Rep. 420,] one of the questions was, whether a subsequent incumbrancer, was an indispensable party to a bill for the foreclosure of a mortgage.— The court said, “it was competent for the complainant to have proceeded against the mortgagors, without noticing either a prior or subsequent incumbrancer. The rights of the former are paramount, and those of the latter will not be concluded, unless he is made a party.” This case is conclusive to show, that Silvia Dole, though she may be a proper, is not an indispensable party.

5. In Walker, et al. v. Hallett, ut supra, where the rights of infant defendants were concerned, the master reported that it was for the interest of the defendants to sell the estate in separate lots, if it can be conveniently divided. The court said, the master should have ascertained whether a division could be made, and which parcel it was most for the interest of the defendants to sell, &c.; that he should have reported such a statement of the evidence, as would enable the court to judge of the justness of his findings, if questioned by either party. The report of the master in the case before us, does not conform to the requirement of the law as laid down in the case cited, which will be readily perceived without a particular notice of the discrepancy.

It follows from what has been said, that the decree must be reversed, and the cause remanded.