Williams v. Cooper

107 Ala. 246 | Ala. | 1894

COLEMAN, J.

It is averred in the bill that appellee became bound as surety for her husband, and mortgaged her real estate to secure the payment of his debt. In the alternative it is averred, that, if she is mistaken in the statement, that the debt was wholly that of her husband, for no part of which she was bound as his surety, then so far as she may have been liable for said debt, the same had been paid. Upon these averments the prayer of the bill is that the mortgage be cancelled as a cloud upon her title. The bill further avers, that if she is mistaken in the statement that her liability has been fully discharged, she prays for an account, and to be let in to redeem.

The bill was demurred to upon the ground that it wa9 multifarious. By section 2349 of the Code it is provided that “the wife shall not directly or indirectly become the surety for the husband.” — Pauline McNeil v. Jno T. Davis, et al. 17 So. Rep. 101. The facts averred-upon which relief is prayed, are wholly inconsistent with each other. In the one case if the facts are as stated, the mortgage is invalid, and was never binding upon the complainant. In the other, the mortgage constituted a valid conveyance, which complainant has either discharged, or is willing to discharge, and to redeem the land from under it. The one rests upon.the invalidity of the mortgage, and the other upon its validity. The decisions of this court have been uniform, that such a bill is multifarious and subject to demurrer. — Micou v. Ashurst, 55 Ala., 607 ; Tatum Bros v. Walker, 77 Ala., 563; Caldwell v. King, 76 Ala., 149; Williams, Deacon & Co. v. Jones., 79 Ala., 119; Cramer v. Watson, 73 Ala., 127.

The cases relied upon by appellee, are cases where the complainant recognized the validity of the conveyance, and averred payment, or in the alternative, a willingness and offer to do equity, if anything was found to be due upon a statement of account. A bill is not multifarious which seeks the cancellation of a mortgage upon the ground that the mortgage debt has been fully paid, or which prays in the alternative to be let in' to redeem, if anything should be found to be due upon the statement of an account. — Tipton v. Wortham, 93 Ala., 321.; Askew v. Sanders, 84 Ala., 356; Dickson v. Winslow, 97 Ala., 48; Hartley v. Matthews, 96 Ala., 226.

Reversed and remanded.