| Ala. | Dec 15, 1883
— The present bill appears to have been drawn with the intention of making it a bill of interpleader, and counsel seem to regard it as falling within that class. So treating it, it is contended for appellant, that his testimony shows a right in him to recover of Searcy, independently of any liability the lands purchased by the latter may rest under, by reason of the Hamilton note and mortgage, now held and claimed by the Witherspoons. Wilkinson’s interest, and only interest in this controversy, would seem to be, first, to show that SearCy had estopped himself from setting up the incumbrance created by the Hamilton mortgage, as a defense to the note held by him, Wilkinson; and failing in this, second, to reduce the sum of that incumbering indebtedness to as low a figure as possible.
The facts of the case are about as follows: On the 13th day of December, 1878, one Schley executed an obligation in writing to Hamilton, to pay him certain bales of cotton, and contemporaneously he and his wife executed a mortgage on a described tract of land, of about one hundred and fifty acres,°to ■ secure its payment. This mortgage was proved, certified, and recorded in the proper office, in due time. This written obli
It will thus be seen, that the claim of the Witherspoons rests on a note executed by Schley to Hamilton, secured by a mortgage on the lands. Searcy is not personally liable for this debt. The most that can be affirmed of it is, that the lands he purchased from Schley are bound for its payment. Wilkinson’s claim is the personal debt and contract of Searcy, secured probably by a vendor’s lien on the same land. It requires no argument to show that these two claims are not for one and the same fund or debt. Searcy owes one' of the debts — that to Wilkinson. Fie does not owe the other. The facts do not warrant a bill of interpleader, properly so called. Hamilton, and those claiming under him, are not placed in fault. The mortgage, properly proven, was recorded in time; and this gave notice to all persons, of its existence and contents. It was Searcy’s own laches that he did not search the record, and he shows no right to shift on to the shoulders of the Witherspoons the burden of defending him against Wilkinson’s claim. Flis own undue, if not blind confidence, has exposed him or his lands to the double liability. — 2 Story’s Equity, §§ 806-7, 820, 821, 822, 824, 824 a; 4 Wait’s Ac. &. Def. 153-4.
.2. But there is an aspect in which the present bill, as amended, does contain equity. Schley is shown to be insolvent, so that Searcy can obtain no reimbursement by suit on the covenants of his deed, in the event the Witherspoon claim is valid, and there is anything due upon it. That being a prior incumbrance on the land, of Schley’s own creation, it is a breach of the covenants of his deed ; and to the extent that Searcy may have his land charged by that incumbrance, he may set it off, and claim a corresponding rebate from his unpaid purchase-money
70. 3-4. Under this principle, the inquiry arises, has Wilkinson proven the truth of his plea, that before he purchased the note, he inquired of Searcy, and that the latter informed him he had no defense to the note, save a cross demand against Schley of $189; and that relying on Searcy’s said statement, he (Wilkinson) purchased the note, and entered the credit of $189 claimed by Searcy. The chancellor, passing on the testimony, found this issue of fact against Wilkinson.
As stated by the chancellor, the onus of proving the truth of this plea rested on Wilkinson. The testimony is in irreconcilable conflict. Wilkinson and his son, C. L. Wilkinson, testify to the truth of the plea. 'Searcy testifies that he made no such representation. Lightfoot testifies that Wilkinson did have knowledge of the debt and mortgage to Hamilton. Reid testifies that, while acting as agent for Wilkinson, in attempting to collect a debt due from Schley to Wilkinson, he learned that the debt and mortgage from Schley to Hamilton existed, but he did not know whether Wilkinson knew it or not. All this testimony relates to á time anterior to June 10th, 1881, when Wilkinson purchased the Searcy note. We can not say we áre “clearly convinced” the chancellor erred in pronouncing on this disputed question of fact. — Nooe's Ex’r v. Garner’s Adm’r, 70 Ala. 443" court="Ala." date_filed="1881-12-15" href="https://app.midpage.ai/document/nooes-v-garners-admr-6511285?utm_source=webapp" opinion_id="6511285">70 Ala. 443. We incline to the opinion, that all the interested parties had knowledge of the Hamilton debt and mortgage, but they believed it invalid, and did not regard it in their dealings as opposing any obstacle.
5. Wilkinson alone assigns errors in this case, and wé can consider no question that does not affect him. As we have said above, the bill contains equity, and presents a case for injunction against him. He has failed to establish the truth of his plea in avoidance of that equity, and it results, that the chancellor rightly refused to dissolve the injunction. He retained it, and rightly retained it, until it should be ascertained whether any thing, and now much, was due to the Witherspoons on the Hamilton mortgage. When that is ascertained, a perpetual injunction should be ordered, of so much of the Wilkinson debt as is equal to the sum found due to the Witherspoons, if any thing.
As we have said, any.other questions than those affecting Wilkinson, we do not, and can not consider, under his assignments of error. He-is interested in-the question of indebtedness vel non, under the Hamilton mortgage, and the extent of
The decision of the court below was not rendered on the pleadings. It was on the evidence. The appeal is prosecuted, not from an interlocutory decree, but from what is claimed to be a final decree. The final relief claimed in this case is a perpetual injunction of the whole or a part of the Wilkinson claim. Till that decree is pronounced, there is no final decree in this cause.&emdash;Code of 1876, § 3918.
We should, perhaps, add, there is nothing in the pleadings or evidence in this record, which invalidates the mortgage given to Hamilton. The question, as now presented, is, whether there is any thing, and how much, due upon it.
Appeal dismissed.