Wilson v. Henderson

¶1 J. E. Henderson (appellee) took an assignment of a mortgage purporting to be executed by W. J. and Lizzie Wilson (husband and wife) to H. L. Peacock. The mortgage was foreclosed by Kirkland as attorney for Henderson; the attorney bidding in the property at the foreclosure sale, and taking a foreclosure deed thereto in his name by verbal agreement with the assignee to hold the title for him. Kirkland brought an action of ejectment (later revived in the name of the devisee under his will) against the Wilsons to recover the full title to the 160 acres described in the mortgage. On the trial it developed that W. J. Wilson owned only 40 acres in fee; that he had an undivided half interest only in the remaining 140 acres, the other half being owned by his wife, Lizzie Wilson; and that since the debt for which the mortgage .was executed was the debt of the husband the wife’s undivided half interest was not subject to, was not effectually conveyed by the njortgage. The plaintiff ■prevailed in the ejectment suit.

¶2 Henderson filed this hill against Mrs. Young, formerly Mrs. Kirkland, and W. J. and Lizzie Wilson. The relief sought was this: The investment of the complainant with the 'title apparently acquired by Kirkland at the foreclosure, this relief being desired and to be effected against Mrs. Young, the devisee under her husband’s will; and the sale, for division of the proceeds, of .the 120 acres of land in which the complainant was a tenant in common with Lizzie Wilson. Decree pro confesso was taken against Mrs. Young. The Wilsons demurred to the bill; the chief point of objection urged being that the bill was multifarious. The chancellor overruled the objection.

¶3 [1] The chancellor’s conclusion-was justified by the authority afforded by Truss v. Miller, 116 Ala. 494, 505, 22 South. 863, 866; Ellis v. Vandegrift, 173 Ala. 142, 148, 155, 55 South. 781; Stone v. Insurance Co., 52 Ala. 589; Hunter v. Briggs, 184 Ala. 327, 63 South. 1004. In Truss v. Miller, supra, it .was said:

*188 “When, as in the present case, the objection is, that distinct and unconnected matters are joined against several defendants, it is not necessary that all the parties should have an interest in all the matters of controversy; it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others.”

¶4 The subject-matter of the bill is a tract of land. The relation of Mrs. Young thereto and the relief sought against her is distinct from that sought against the appellants, whose mortgage is claimed to be the source of the complainant’s rights in the premises. On the part of the appellants, they are concerned in the sale of the land in which the complainant avers he is a tenant in common. The common ligament connecting all of the parties is the subject-matter of the cause, viz. the land; and the relief sought invoked the court to determine, in accordance with equity’s customary thoroughness, all rights 'or claims related to the subject-matter.

¶5 [2] Furthermore, since the costs of a cause in equity are within the control of the court, ' as the chancellor well observed, the appellants could not be prejudiced by the presence of Mrs. Young as a party respondent or by the fact that a divestiture of the title in her, by succession, that in truth was complainant’s, is sought in the bill. Stone v. Insurance Co., 52 Ala. 589; Ellis v. Vandegrift, 173 Ala. 142, 148, 55 South. 781. There was no error in overruling the demurrer to the bill.

¶6 In their cross-bill the appellants set up that the mortgage was invalid, and the foreclosure ineffectual, because the mortgage was not efficiently executed. The appellee, original complainant and respondent to the cross-bill, answered, and sought the benefit of the estoppel wrought by the judgment in the ejectment suit, on the trial of which the execution of the mortgage was a contested issue. The sufficiency of the response to the cross-bill through the estoppel asserted was questioned by the- cross-complainant. The answer itself did not carry allegations where-from it could be concluded that the appellee (original complainant and respondent in the cross-bill) was so related to the litigation and the judgment in the ejectment suit as to be entitled to avail of the estoppel thereby created, but from paragraph 3 of the .original bill it appears that the ejectment suit was instituted, in the name of the Kirklands, for his (complainant’s) use and benefit; that the Kirklands were not really the owners of the land; and that this fact was brought out on the trial of the ejectment suit.

¶7 [3-5] Henderson was, in reality, the plaintiff in that action, and would have been bound by the judgment therein had it favored the defendants, the Wilsons. Tarleton v. Johnson, 25 Ala. 300, 60 Am. Dec. 515. Since the cause, constituted of the original bill and responses thereto and of the cross-bill and the response thereto, was one cause (Bell v. McLaughlin, 183 Ala. 548, 62 South. 798), and since the sufficiency of the response to the cross-bill, by the original complainant, is to be determined with reference to the allegations of the original bill (McIlvain v. Southwestern Co., 10 Phila. [Pa.] 371; 16 Cyc. p. 335; see, also, Hudson v. Hudson, 3 Rand. [Va.] 117; Harton v. Little, 166 Ala. 340, 344, 345, 51 South. 974), the court cannot be held to have erred to the prejudice of appellants in sustaining the sufficiency of the response asserting the estoppel wrought by the judgment in the ejectment suit, wherein the validity and sufficiency of the execution of the mortgage by the appellants was alleged to have been pointedly contested and necessarily decided in that action. Robinson v. Inzer, 195 Ala. 491, 70 South. 717; Coleman v. Stewart, 170 Ala. 255, 53 South. 1020. While that judgment did not conclude any equitable rights over which the law court could not exercise jurisdiction, its effect was to conclude the appellants from again contesting the issue of the valid execution vel non of the mortgage in the court of equity. Authorities, supra. The chancellor, it appears from his opinion, proceeded on the theory that laches had been appropriately invoked by the appellee, the cross-respondent, in answér to the feature of the cross-bill whereby a reformation of the mortgage was fought by the cross-complainant. We find in the record no such answer interposed to that feature of the cross-bill.

¶8 [6] In the absence of an appropriate assertion of this defensive matter by the cross-respondent (appellee), the relief by the reformation of the mortgage could not be soundly denied on the ground of laches. Hogan v. Scott, 186 Ala. 310, 65 South. 209; Grand Lodge, etc., v. Grand Lodge, etc., 174 Ala. 395, 403, 56 South. 963; Solomon v. Solomon, 81 Ala. 505, 1 South. 82. A consideration of the legal evidence bearing on the issue of mutual mistake in including more than the 40 acres in the mortgage, written by the justice of the peace, does not convince this court that the chancellor’s conclusion in this respect can be sustained on the theory that the mistake averred in the cross-bill was not proven.

¶9 There is no appropriate pleading inviting the determination by the court of anything with reference to the assertion, in the evidence only, that a vitiating alteration or alterations of the mortgage was made.

¶10 The decree is reversed. The cause is remanded that the court may permit the reformation of the pleadings so that the issues may be properly determined.

¶11 Reversed and remanded.