Bolling v. Pace

• Decision Date: 06 April 1893
• Parties: BOLLING ET AL. v. PACE ET AL.
• Court: Alabama Supreme Court

12 So. 796

99 Ala. 607

BOLLING ET AL. v. PACE ET AL.

Supreme Court of Alabama

April 6, 1893

Appeal from chancery court, Crenshaw county; S. K. McSpadden Chancellor.

Bill by R. E. Bolling & Son against R. R. Pace and others to foreclose a mortgage. There was a decree for defendants dismissing the bill, and complainants appeal. Affirmed.

Gamble & Bricken, for appellants.

McCLELLAN J.

This bill is filed by R. E. Bolling & Son against W. H. Cook, R R. Pace, and N. A. Pace, his wife, and Rufus Cook. Its averments, so far as material, are: On November 13, 1884, W H. Cook sold the land which is the subject-matter in litigation to R. R. Pace, executing a conveyance in fee to the purchaser. On the same day Pace and wife executed a mortgage to secure the payment of the purchase money, which was also evidenced by Pace's note, to said Cook. On January 8, 1885, W. H. Cook transferred and assigned said note and mortgage to Bolling & Son for value. On May 16, 1890, the present bill was filed for the purpose of foreclosing said mortgage. With respect to Rufus Cook, its averment is that he "sets up some kind of a pretended claim to the lands embraced in said mortgage, but that, if said Cook has any claim at all on said lands, it is inferior and subordinate to" that of the complainants under said mortgage. After the usual prayer for process against each of the defendants, etc., for an account to ascertain the amount of the secured debt, and for a decree for its payment by a day to be named in the decree, the complainants pray further that, "in default of such payment, your honor will decree that the defendants R. R. Pace and N. A. Pace, and all persons claiming under them, may be absolutely barred and foreclosed of and from all rights and equities of redemption in and to the mortgage property, and any part thereof, and that the said mortgaged property be sold by the decree of this honorable court, and out of the proceeds of such sale pay to your orators the amount ascertained to be due them on the mortgage, with the costs of this suit;" and this is followed by the prayer for alternative and general relief if complainants are mistaken as to the relief specially prayed, etc. Only Rufus made defense to the bill. He answered, admitting its averments as to the sale and conveyance by W. H. Cook to Pace, the mortgage by Pace and wife to said W. H. Cook to secure the purchase money, but denying "the averment of a transfer of said mortgage to complainants by defendant Wm. H. Cook." Continuing, he answers that it is true that he sets up a claim to the lands described in said mortgage, but that his claim and title to said land is not pretended, and that it is not subordinate to the right and claim of complainants, but that at the date of the pretended sale by W. H. Cook to Pace said Cook did not have the legal title to said land, or the right to sell the same to Pace, or any one else, but that the legal title at the time of said sale and at the time of the execution of the mortgage by Pace "was in one Jacques Loeb, conveyed by Jefferson Cook and Martha Cook by mortgage deed executed on the 13th day of March, 1882;" that said mortgage was transferred and assigned for value by said Loeb to Marks & Gayle on January 9, 1885, and by said Marks & Gayle transferred and assigned for value to William T. Tranum on April 8, 1886; and that said Tranum on December 24, 1887, "bargained, sold, and conveyed to respondent, [said Rufus Cook,] by absolute deed, the lands described in the mortgage from Pace and wife to W. H. Cook;" and that said respondent "is in possession of said lands, and has occupied the same from the date of the purchase from said Tranum." The mortgage from Jefferson and Martha Cook, together with the several transfers thereof alleged in the answer, and the deed from Tranum to Rufus Cook, are made exhibits to the answer.

The evidence on which the case was submitted, aside from the exhibits to the bill and answer, and proof of the execution of the deed by Tranum to Rufus Cook, consisted of the pleadings, exhibits, depositions, orders, reports on reference, decrees, etc.,-the whole file and record,-in another case, (that of R. E. Bolling & Son against W. H Rufus, Jefferson and Martha Cook, and W. T. Tranum,) which had been prosecuted and determined in the chancery court of Crenshaw county. This bill had two main purposes. W. H. Cook and Jefferson Cook had executed to Bolling & Son a note evidencing indebtedness, which was originally due in part from Jefferson Cook and in other part from W. H. and Rufus Cook, composing a partnership. To secure its payment, W. H. Cook executed a mortgage to Bolling & Son. Subsequently, it seems, Jefferson Cook claimed that the property embraced in this mortgage, or a part of it, did not belong to W. H., but to himself, Jefferson Cook. The bill sought a foreclosure of the mortgage, and to subject any title Jefferson had in the property to the payment of the debt secured by it, on the theory that the latter had induced Bolling & Son to take the mortgage by representing the title of the property to be in W. H. Cook, thereby estopping himself to afterwards assert the contrary. Beyond this, the bill sought to set aside as fraudulent a certain conveyance made by Jefferson Cook and Martha Cook, his wife, to said Tranum, and to subject the property embraced therein to the satisfaction of the note made by W. H. and Jefferson Cook to the complainants. The bill alleges that to further secure the debts evidenced by said note W. H. Cook transferred, and assigned...