123 Ala. 413 | Ala. | 1898
Dissenting Opinion
DISSENTING OPINION.
I cannot concur in these views and accordingly express my dissent therefrom in the remaining portion of this opinion. It appears that on the 22d day of September, 1896, a decree was rendered in the foreclosure proceedings, by the chancery court, in favor of the complainant and against the respondent Wells, as administrator of the estate of Sarah Wells, for the deficiency found to be due upon the mortgage debt after allowing as a credit the proceeds of the lands conveyed by the mortgage and ordering the issuance of execution against him. On the 17th day of March, 1898, the respondent
The first question raised by the appellee is, that the deere'e dismissing the petition will not support an appeal under section 426 of the Code. If a want of jurisdiction was apparent on the record to decree the deficiency and order execution, the motion to quash the execution was the proper procedure to vacate the order in the decree for its issuance, and an appeal will lie from the judgment or decree granting or denying it. — 3 Brick. Dig. 584, § 124. It is Avell settled that where a decree, void for want of jurisdiction, has been rendered, the court has the power and should, on motion, vacate such decree, at any time subsequent to its rendition; but if the decree is not void, the court has no power to alter, vary or'annul it after the expiration of the term at which it was rendered, except for clerical error or omission on evidence shown by the record.—Baker v. Barclift, 76 Ala. 414; Buchanan v. Thomason, 70 Ala. 401. If void for want of jurisdiction in the court to render it, it was a mere nullity and may be impeached collaterally.—2 Brick. Dig. 157, § 17. Did the court have jurisdiction
1. -To all civil causes in which a plain and adequate remedy is not provided in the other judicial tribunals.
2. To all cases founded on a gambling consideration, so far as to sustain a bill of discovery and grant relief.
3. To subject an equitable title or claim to real estate to the payment of debts.
4. To such other cases as may be provided by law.”
The scope of these four sub-divisions was clearly defined in the case of Waldron, Isley & Co. v. Simmons, et al., 28 Ala. 629. The court there said: “The first subdivision which includes ‘all civil causes in which a plain and adequate remedy is hot provided in the other judicial tribunals’ is but the adoption of the pre-existing rule; the second and third sub-divisions, which include cases founded on gambling consideration and cases to subject the equitable title to real estate to the payment of debts, are modifications, by way of enlargement, of the system of equity jurisprudence and jurisdiction which had been established in England prior to the American Revolution; and the fourth sub-division, which includes ‘such (fiber cases as may be provided by law,’ embraces all cases which, at and before the adoption of the Code, were known to be within the jurisdiction of courts of equity, and are not embraced in the first three subdivisions.” “For,” says the court,“ to hold that the fourth subdivision means simply to declare that the powers and jurisdiction of courts of chancery ‘extend to such other cases as may be provided for’ by some section of the Code, or by some subsequent statute, is to deprive it of all nieaning and practically to expunge it; for it is clear that the powers and jurisdiction of courts of chancery would extend to all cases provided for by the various sections of the Code and by subsequent statutes, as effectually without the fourth suh-division, as with it.”
It cannot be doubted that courts of equity have original and general jurisdiction to foreclose mortgages, based upon their inherent jurisdiction over trusts. And. it may be said, when resort is had to the courts that its jurisdiction is exclusive for the reason the remedy cannot be enforced in courts of law. But there was no power in these courts under their original jurisdiction to render a personal decree in the foreclosure proceeding against the mortgagor or other person liable for the debt secured by the mortgage for the deficiency.; — Wilsie on Mortgage Foreclosures (new ed.), § 601’; 8 Am. & Eng. Encyc. Law, 264, and note 1. Nor did courts of chancery in this State possess this power until expressly conferred by statute. — Code, § 859; Hunt v. Lewin and Wyser, 4 Stew. & Port. 138; Teal v. Lewis, 85 Ala. 218; Presley v. McLean, 80 Ala. 309. This special jurisdiction is auxiliary, resultant and dependent upon the success of the complainant to secure a decree of foreclosure and the failure of the property conveyed by the mortgage to sell for enough to satisfy the mortgage debt. By force of the .language of the statute which is “in all cases where an account is taken between the parties execution as at law may issue for the amount of indebtedness ascertained by the decree of the court; ancl in all foreclosure suits or suits for the enforcement of equitable liens, execution may issue for the balance found due after the sale of the property ordered and decreed to bo
The statute is silent as to the mode or method to be adopted by the complainant, .mortgagee, to bring into exercise this special jurisdiction. It not infrequently happens that the mortgagor, or other person originally liable for the payment of the mortgage debt, has a perfect defense as against the enforcement of the debt, but cannot resist a foreclosure of tin;,mortgage of the property conveyed by it. For instance, take the case; presented here, the respondent, as an administrator ofian insolvent estate, could not defend against the bill to subject his intestate’s lands conveyed by her mortgage to the satisfaction of the complainant’s debt, but no personal decree for the deficiency could have been rendered against him, had the bill by its allegations and prayer sought it against the defense that the estate had been legally declared insolvent. Or, in the case, where the debt secured by the mortgage; is evidenced by a promissory note of the mortgagor and more than six years had elapsed between the maturity of the note and the filing of the bill, the statute of limitations would have been a valid defense against the 'remedy seeking a personal decree for the deficiency and no defense to the remedy seeking a foreclosure of the mortgage. Another apt illustration of these principles would be a .case where a third person had purchased the mortgaged property from the mortgagor, assuming to pay the mortgage debt
These illustrations, though simple, demonstrate that the two remedies afforded the mortgagee in the same cause and by the same bill, different and distinct defenses to each of them may be interposed. How then is the mortgagor or his representative, in case of his death, to know that the jurisdiction of the court is invoked- as-to both remedies, or the court to know that it is the purpose of the complainant to do so, unless there is some allegation or statement in the pleadings of the complainant to put the defendant and the court upon notice that such is the case? It is optional with the complainant as to whether he will do so. He may, if he chooses, seek a decree of foreclosure of his mortgage without asking for a personal decree for the deficiency.—Presley v. McLean, supra. It is the purpose of pleadings to-present the issue in controversy between the parties litigant. And unless the point is directly in question or necessarily involved in the issue presented the judgment or decree in a cause is not res adjudicate.—McCall v. Jones, 72 Ala. 368; Gilbreath v. Jones, 66 Ala. 129; McDonald v. Mobile Life Ins. Co., 65 Ala. 358; Chamberlain v. Gaillard, 26 Ala. 504. Nor can an estoppel by judgment rest in inference or argument.—McCravey v. Remson, 19 Ala. 430; Freeman on Judgments, § 258; 1 Gr. Ev., § 528-. ' The right of the defendant to know what issue he is required to defend against is of the very essence of his constitutional right “to due process of law.” To hold that a court may render a decree or judgment upon a cause of action entirely foreign to the issue presented by the pleadings of
The opinion of Chief Justice Beaseey of the Supreme Court of New Jersey, in the case of Munday v. Vail, 34 N. J. Law, 418, where a decree of the chancery court is assailed upon a collateral attack as void, is a very lucid statement of the law upon the subject under consideration, and we quote at length from it: “From the statement of facts prefatory to this opinion, it appears that Asa Munday settled his property in trust for the use of himself and wife and the survivor, for life, with remainder to his children. Asa Munday is dead, Matilda Vail, the plaintiff in the court below being his sole issue. To her the-widow and trustee released or conveyed their title and right in the premises. The defendant holds the property by virtue of a sheriff’s sale under a decree for costs against Asa Munday made a long time after the above-mentioned deed of trust. It, therefore, is apparent that if the trust estate was existent at the time of this sale by the sheriff, the plaintiff’s title is unquestionable. The case turns upon this point. The defense claims that the deed of trust and all rights under it were destroyed and annulled by the decree of the'court of chancery, in the suit wherein Ephraim Munday was the complainant. The legal validity and effect of that decree is the point to be settled. It is obvious, at a glance, that this decree, so far as it affects the.present question, is a most extraordinary one. It is opposed to the well settled practice of courts of equity and to the commonest principles of justice. This is clear when it is said that its effect is, if it have validity, to deprive an infant defendant of an estate vested in her, without an -issue or a hearing with respect to her rights. The case made by the bill, was this: the complainant alleged that he had loaned money on a promise of security in the form of mortgage on certain land, and the borrower, in disregard of such, contract; had conveyed such land in trust
The views. expressed in this opinion are quoted and adopted by the Supreme Court of the United States in the case of Reynolds v. Stockton, 140 U. S. 254. See also Seamster et al. Blackstock, 83 Va. 232; Ex parte Lange, 18 Wall. 163; Wade v. Hancock, 76 Va. 620; Crain v. Carana, 62 Barb. 109; Atwood v. Frost, (Mich.), 16 N. W. Rep. 685; Unfried v. Herberer, 63 Ind. 67; Minor v. Walter, 17 Mass. 237.
Applying the foregoing considerations to the case in hand, in which it appears from the record that the bill on its face seeks only the foreclosure of the mortgage and to subject the lands to its satisfaction, and there being no averment whatever that the property conveyed is insufficient to pay the debt or that there would likely be a deficiency for -which a personal decree would be asked, we are constrained to hold, that the decree for the deficiency was void. — Wilsie on Mortgage Foreclosures (new ed.), § 293, and note on p. 349. It does appear from a recital in this decree that it was rendered on motion of the complainant- for a balance over against the respondent as administrator, after allowing credit for the proceeds of the sale of the lands. As to this motion, there is no recital in the decree of any personal notice to him, nor does the record disclose that any notice was ever served upon him. Unaided by the presumption of jurisdiction, such notice must appear of record, and in the absence of it, the decree* if based upon the motion, is a nullity. Whatever may be the proper practice to invoke the jurisdiction of the court in such cases, whether by proper averments in the bill or by motion, it is very clear that the mortgagor or the person liable for the mortgage debt must have notice that a personal decree is sought against him and be afforded an opportunity to be heard.
The petition to vacate the decree and quash the execution should have been granted.
Lead Opinion
The other members of the court are of opinion, that by sheer force of the statute, a claim for decree over for any balance of the mortgage debt left after the application thereto of the proceeds of the sale of the mortgaged property, is within the Us pendens of every foreclosure suit from the moment of its institution, and, of consequence, that, while it is necessary for the complainant to move for such decree over after the balance has been fixed and ascertained, no notice of such motion need be given to the respondent: He has notice of complainant’s claim in that regard, and of his right to make such motion in the contingency named and that it will be made, from the first, just as lie has notice of all other relief the complainant may be or become entitled to in the cause. — Code, § 859, and cases there cited. It follows that the decree must be affirmed. .•