78 Ala. 99 | Ala. | 1884
A cross-bill is in its 'nature defensive. It ’ must relate to, and be connected with the subject of the original bill, and can bring in no new matter entirely foreign to it, except, perhaps, in cases of set-off against an insolvent comjfiainant. Some affirmative defenses, even against the complainant himself, can only be made under a cross-bill. The necessity of a cross-bill sometimes arises between the defendants, when, in equity, the burden of complainant’s claim should be apportioned among two or more of such defendants. Davis v. Cook, 65 Ala. 617. Still, the subject and purpose of the cross-bill must be germane to the original bill. Some portions of the present cross-bill are not a proper subject for defensive pleading, to the case made by the original' bill in this cause. It attempted too much — more than can be accomplished in one suit; notably, in a cross suit.
2. Another objection is fatal to this eross-bill. It will be observed that it was not filed until near two and a half years after the original bill was filed. It is also shown, in its own averments, that for one and a half, or two years, A. A. J. Riddle, the complainant therein, had knowledge of the unauthorized and illegal use that had been made of his property,
The present bill was filed in January, 1879, by a judgment-creditor of the estate of Nathaniel W. Piddle, and seeks to subject to the payment of said judgment a tract of land known as the “Mitchell place.” The debt, on which complainant’s judgment was rendered, was contracted by Nathaniel W. Piddle, in the spring of 1863. Nathaniel W. Piddle died, intestate, in December, 1866; suit was instituted on said claim in 1867, and, after protracted litigation, a judgment was recovered in the spring of 1875. In 1868, while said suit was pending, the estate of N. W. Piddle was declared insolvent, and the judgment was certified to the Probate Court for allowance. No question is raised on non-claim, or for failure to file against the insolvency. No settlement of Piddle’s estate has been had, and there has been nothing paid to the creditors.
The Mitchell lands were owned by Mitchell at the time of his (Mitchell’s) death. They were sold by the administrator in 1860, and Nathaniel W. Riddle became the purchaser on long time. The purchase price was fifty-nine thousand dollars, for which he gave his notes with sureties, Archibald A. J. Piddle, his brother, being one of them. The sale was reported to the court, and confirmed. Nathaniel W. received no title to the lands, but only an obligation to make him title when the purchase-money was paid. No valid, legal conveyance, devesting the title out of the heirs, has ever been executed. Nathaniel W. took possession at the time'he made the purchase, and remained in possession until his death. When he died, in 1866, there remained unpaid of the purchase-money, with, accrued interest, about forty thousand dollars.
By deed, absolute on its face, bearing date January 1st, 1862, Nathaniel W. Piddle conveyed to Archibald A. J. Piddle a large amount of property, real and personal, in which the Mitchell tract is embraced, on a recited consideration of fifty thousand dollars. The granting clause of said deed, so far as the Mitchell tract is concerned, contains this language: “ The said party of the second part [Archibald A. J. Piddle] agreeing to pay the balance which may be due on sundry
The claim to the Mitchell place, set up by Jones, the present claimant, is as follows : A commission-house in Mobile underwent several changes of partnership name, and of the persons forming the partnership. It was first composed of Winston and Jones, Sr.; next, Jones, Sr., and De Pras; third, Jones, Sr., De Pras and Jones, Jr.; fourth and last, Jones, Jr., and De Pras. We may not be precisely accurate in these several changes, but this is unimportant. The several changes were but successive proprietorships of the same business house. In each stage they were the commission-merchants of Archibald A. J. Riddle, advanced for him, accepted his drafts, raised money for him, and disposed of his produce. In 1872, A. A. J. Riddle first mortgaged the Mitchell placed to this mercantile house. The consideration of this mortgage was an antecedent'debt, extended in consideration thereof for several months, and supplies then advanced, and afterwards furnished, according to the agreement on which the mortgage was given. The business relations were kept up, advances were continued to be made, mortgages were annually renewed, until, about 1877, A. A. J. Riddle was left indebted to the firm in a sum exceeding twenty thousand dollars, with the Mitchell place and Riddle’s other property under mortgage for its payment. During all this time, and for three years preceding its inception in 1872, Archibald A. J. Riddle was in possession, and claiming the property as his own, under a recorded deed of bargain and sale from Nathaniel W. Riddle.
3. The pleadings, and agreements and admissions of counsel, found in this record, establish the following propositions, so clearly as to leave no room for doubt: First, that the debts claimed under the mortgage were bona, fide, and subsisting, to the extent claimed by Jones & Co.; second, that they were contracted, in part, on a binding agreement to extend to a definite future time a valid debt due from Riddle, and, for the residue, on a consideration contemporaneous with the execution of the mortgage ; and, third, that when all these debts were
4. It is contended for appellants, that there was fraud in the execution of the deed by Nathaniel W. to Archibald A. J. Biddle, and that each of the following facts and circumstances was sufficient to put the mortgage creditors on notice, which, if followed up, would have led to the discovery of the fraud. First: The deed from Nathaniel W. to A. A. J. Biddle shows on its face that the title was in Mitchell’s heirs, and that Nathaniel W. had made only partial payment. The deed was sufficient to put purchasers on inquiry, but it was only such inquiry as the information pointed to. If Mitchell’s heirs were asserting claim for unpaid purchase-money, Jones & Co. could not maintain against them the plea of bona fide purchaser without notice. The title deed itself gave notice of that. Dudley v. Witter, 46 Ala. 664; Hodges Bros. v. Coleman Carroll, 76 Ala. 103. It suggested no inquiry which could have led to a discovery of supposed fraud in the conveyance by Nathaniel W. to Archibald A. J. Biddle.
5. It is urged in the second place, and is shown, that Archibald A. J. Biddle instituted a suit in chancery against the personal representative of N. W. Biddle, and against the heirs and representative of Mitchell, to perfect his title to the said Mitchell lands ; and that this ought to have put Jones & Co. on inquiry, as lis pendens concerning this identical property. That suit Avas terminated in Biddle’s favor, in 1869, and Jones & Co. assert no claim to the land which antedates 1872. Lis pendens is constructive notice, only while the suit is pending, and not after its termination. — Moon v. Crowder, 72 Ala. 79 ; Leading Cas. in Eq. (4th Am. Ed.), vol. 2, part 1, pp. 193, 201.
6. A third argument urged is, that the record and files in the administration of Nathaniel W. Biddle’s estate show that Archibald A. J. Biddle did not pay the Mitchell estate notes as a debt of his own, assumed in the purchase of the land from Nathaniel W., but as surety for the latter, for which he claimed re-payment from the said N. W’s. estate. These notes, it will be remembered, were to be paid by Archibald A. J., as part purchase of the Mitchell land. He had filed them against his deceased brother’s insolvent estate, as so much money paid for and on account of that estate. The record and files of the said N, W.’s estate do not appear to concern the land in contro
7. It is further urged for appellants, that the arrangement by which Winston Jones permitted Tate and Morgan to purchase the Mitchell lands on a credit, was a fraud which should avoid the foreclosure of the mortgage. Credit sales usually command higher prices than those made for cash. This would operate a benefit to the mortgagor, and to all others interested in his estate. There was nothing in the agreement calculated to forestall rival bidding, and it is not shown the property was sold below its market value. There is nothing in this objection.
8. At the mortgage sale under the power, complainants caused notice to be given of their claim, and of their intention to attack the conveyance for fraud. This can avail them nothing. Jones & Co., as we have shown, were bona fide purchasers, having a lien, and without notice. That lien would avail them nothing, if, when they came to foreclose their mortgage, a notice or warning to the by-standers could deprive the purchasers of the superior equities the mortgagees held. One of the advantages a prior lienor has, is that he transfers to a purchaser the superior rights the facts of the case confer on him. Less than this would render his paramount lien valueless. Turner v. Wilkinson, 72 Ala. 361.
The decree of the chancellor is affirmed.
