Austin v. Bean

• Decision Date: 09 August 1894
• Citation: 16 So. 41,101 Ala. 133
• Parties: AUSTIN ET AL. v. BEAN ET AL.
• Court: Alabama Supreme Court

16 So. 41

101 Ala. 133

AUSTIN ET AL. v. BEAN ET AL.

Supreme Court of Alabama

Aug 9, 1894

Appeal from city court of Decatur; William H. Simpson, Judge.

Action by L. G. Bean, executor, etc., of B. F. Bean, against W. H Austin and others. There was a judgment for plaintiff, and for defendant the Armitage-Herschell Company, upon defendants' cross bills from which certain defendants appeal. Reversed.

The original bill in this case was filed on February 12, 1891, to foreclose a mortgage executed by V. L. Austin and wife Elizabeth Austin, to John D. Rather, on February 12, 1884 and which mortgage was transferred by said Rather to B. F Bean on March 26, 1885. The said transferee, B. F. Bean, died, and the executor of his last will and testament, L. G. Bean, is the complainant in the present suit. The said V. L. Austin and Elizabeth Austin also died before the present bill was filed, and left surviving them, as heirs at law, William H. Austin, Mollie Roper, née Austin, and Taylor Austin, a non compos mentis. The facts of the case are sufficiently stated in the opinion. There were objections to that portion of the testimony of William H. Austin, Charles Austin, and Mrs. Roper to the effect that the money borrowed from Rather, to secure the payment of which the mortgage was executed, was for the use and benefit of William H. Austin. The grounds of this objection were that it was shown on cross-examination that the witnesses' source of knowledge was hearsay, and because such testimony was in reference to a transaction with or statement by a deceased person, whose estate is the subject-matter of the suit, and the witnesses are parties thereto and interested therein. These objections were sustained in the final decree of the chancellor. On the final submission of the cause, upon the pleadings and proof, the chancellor decreed that the complainant in the original bill was entitled to the relief prayed for, and that the Armitage-Herschell Company, under the prayer for general relief in its cross bill, was entitled to have all of the lands described in the mortgage of Bean to Rather "sold for the satisfaction of the mortgage of the complainant, L. G. Bean, executor, and to have the sale of each share made separately, and to have each share contribute equally to the payment of the price and paramount charges on the land, to wit, the Bean mortgage and the costs of the suit, and, further, to have the remainder of the said three shares paid over to the parties entitled, to wit, Mollie Roper, Taylor Austin, and said Armitage-Herschell Company." The chancellor also declared that if any latent equity existed in favor of Mollie Roper, Taylor Austin, and Charles Austin, at the death of their father, as set up in the cross bill filed by them, it was "cut off by the partition proceedings in the probate court, to which they were parties, and by the conveyance of Mollie Roper to William H. Austin, all of which made them warrantors of each other," and therefore decreed that the cross bill filed by them be dismissed. This appeal is prosecuted by Mollie Roper, Taylor Austin, and Charles Austin, who assign as error the final decree of the chancellor granting the complainant the relief prayed for in the original bill, dismissing appellants' cross bill, and in not ordering the lands of William H. Austin to be sold in payment of the mortgage before subjecting the lands of appellants to sale, and also in holding that William H. Austin, Mollie Roper, and Taylor Austin were not competent to testify as to the purposes for which the mortgage by Virgil Austin to Rather was made.

Where an heir mortgages his share of lands descended, his mortgagee is charged with notice of an equity of the other heirs to have such share applied first, in exoneration of the others, to the satisfaction of a mortgage created by their ancestor, for the benefit of such heir, on all the shares.

Harris & Eyster and Brickell, Semple & Gunter, for appellants.

E. W. Godbey, for appellees.

HEAD, J. William H.

Austin, Taylor Austin, and Mollie Roper, née Austin, acquired by descent from their father, Virgil Austin, deceased, 396 acres of land, described in the bill. This land, at the death of Virgil, was incumbered by a mortgage which he had executed thereon to John D. Rather for $1,262, which debt and mortgage, by assignment, became the property of B. F. Bean. The note which the mortgage was given to secure was executed by said Virgil and his son, the said William H. Austin, so far as the note itself discloses, as principal debtors. Virgil Austin died in 1885. On the 3d day of October, 1887, William H. Austin instituted proceedings in the probate court of Morgan county, wherein the lands lay, against his said brother and sister, Taylor Austin and Mollie Roper, for partition of the lands between himself and them, under the provisions of Code, art. 1, c. 17, tit. 2, pt. 3. The proceedings were had and conducted, in every respect, conformably to the statute, and resulted in partition, under proper decree, on the 12th day of December, 1887; the share of each being alloted and set off to him or her in severalty, of which due record appears. Immediately after this allotment the said William H. and Mollie exchanged shares, each conveying to the other, by separate deeds, with general covenants of warranty, the land which had been allotted to him or her; respectively, the husband of Mollie joining with her in her conveyance. On the 24th day of June, 1890, the said William H. Austin and wife, to secure an indebtedness of $2,000, presently contracted, executed to Owen & Morgerson a mortgage on the lands acquired by him by exchange with his sister, which debt and mortgage were subsequently assigned for value to the Armitage-Herschell Company. In March, 1889, said Mollie Roper sold to Charles H. Austin three acres of land she had acquired by the exchange, and he went into possession of and improved the same. In this status of the land, the complainant, L. G. Bean, as executor of B. F. Bean, deceased, filed this bill to foreclose the said Rather mortgage, bringing all the said interested parties before the court as defendants.

Mollie Roper and husband and William H. Austin and Charles H. Austin answered seperately, setting up that the mortgage sought to be foreclosed was executed by Virgil Austin to secure the payment of money borrowed from Rather for the exclusive use and benefit of said William H. Austin, who received and used the same for his own purposes,-the said Virgil becoming, by the execution of the note and mortgage, in fact merely the surety of William H., who was in fact the principal debtor,-and insisting that the land acquired by him by virtue of the allotment and exchange aforesaid be first sold, in ease or exoneration of the portions of the land acquired by said Mollie and Taylor Austin. Taylor Austin, being non compos mentis, defended by guardian ad litem, who, by answer, denied all the allegations of the bill. Mollie Roper, Taylor Austin, by next friend, and Charles H. Austin also jointly filed a cross bill to marshal the assets, praying the prior sale of William H. Austin's share of the land in exoneration of the rest. This was answered by the Armitage-Herschell Company, setting up the said partition proceedings and exchange, the execution, and their acquisition of the Owen & Morgerson mortgage, denying the alleged suretyship of Virgil Austin, and insisting that they were bona fide purchasers, without notice of the alleged equity. They also answered the original bill, and, making their answer a cross bill, set up the same facts as those set up in their answer just mentioned, and prayed that the lands of Mollie Roper and Taylor Austin be first sold, in exoneration of the lands of said William H., upon which they hold their mortgage. This relief, however, was denied by the chancellor, and is not insisted on, and may not be further noticed. The controversy then is between Mollie Roper, Taylor Austin, and Charles H. Austin, on the one side, and William H. Austin, Owen & Morgerson, and the Armitage-Herschell Company, on the other, and turns upon the equity of the cross bill filed by the former. It appears, however, that William H. Austin is friendly to the purpose of the cross bill. The sufficiency of this cross bill was tested by demurrer interposed by the Armitage-Herschell Company, the important grounds of which are that any equity the complainants therein may have had to marshal the assets as prayed is cut off and barred-First, by the said proceedings in partition; and, secondly, by the conveyance in fee, with warranty, of Mollie Roper and husband to William H. Austin, their mortgagor.

It is most manifest, our statutory system of partition of lands between joint owners or tenants in common makes no provision for adjusting equities which may subsist in favor of the owners upon, or in respect of, the joint or common property. It is a system whose whole purpose and scope are to effect by easy and expeditious methods, the division of the property into as many equal shares in value as there are owners, and the allotment of one share to each, and to convert the previously existing unity of title and possession into titles and possessions in severalty. In order to the exercise of the jurisdiction, the interest of each owner must be the same and the partition must be made by lot. There is no intention in the statute, or jurisdiction conferred upon the probate court, to settle conflicting claims of title, whether legal or equitable. On the contrary, it is expressly provided that no division or partition can be made under the statute when an adverse claim or title is asserted by any one, or brought to the knowledge of the commissioners or of the judge of probate. Code, § 3251. And the...