Boon v. Riley

• Decision Date: 13 April 1911
• Citation: 171 Ala. 657,54 So. 997
• Parties: BOON ET AL. v. RILEY.
• Court: Alabama Supreme Court

54 So. 997

171 Ala. 657

BOON ET AL. v. RILEY.

Supreme Court of Alabama

April 13, 1911

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

Ejectment by Sidney E. Riley against Frank Boon and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

H. H McClelland, for appellants.

Miller & Miller, for appellee.

SOMERVILLE J.

The plaintiff in ejectment rested his title and right to recover the possession of the land from the defendants upon a mortgage deed executed by defendants to plaintiff's wife which after default she foreclosed by sale under power executing a deed in due course and form to plaintiff as purchaser at that sale. The land in suit was the separate estate of the defendant Bettie Boon, who is the wife of her codefendant Frank Boon; and, unless her title was divested by the said joint mortgage executed by them to plaintiff's wife, she remained the owner of the land by title paramount to plaintiff's claim. The defendants in ejectment offered to prove by the records of the Monroe chancery court that prior to the foreclosure sale under which plaintiff claims, his privy in estate, the said mortgagee, had filed her bill in chancery, with appropriate averments, praying for a foreclosure by that court of this very mortgage; that these defendants were made defendants to that foreclosure suit, and that they filed their answer to the bill, in which they contested the validity of the mortgage on the asserted ground that the property therein conveyed was the separate property of Fanny Boon, the wife, and the debt which the conveyance secured was wholly the debt of Frank Boon, her husband, wherefore the mortgage was void as to her land, which it purported to convey; that after this answer was filed the cause was several times successively set down for hearing under the orders of the court; and that at the third regular term after it was first at issue the said complainant appeared and by her own motion caused it to be dismissed. The trial court sustained plaintiff's objection to the introduction of these documents on the ground of their immateriality, irrelevancy, and incompetency, and because the law permits two suits in ejectment. This ruling, duly excepted to, is assigned as error.

The twenty-eighth rule of chancery practice provides that "if the complainant, after the cause is set down to be heard, cause the bill to be dismissed on his application such dismissal, unless the court otherwise orders, is equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter." The effect of this rule has been several times declared by this court: Strang v. Moog, 72 Ala. 460; Burgess v. Am. Mort. Co., 119 Ala. 669, 24 So. 727; Warrior River C. & L. Co. v. Ala. St. Land Co., 154 Ala. 135, 45 So. 53; Kelly v. Griffin, 165 Ala. 309, 51 So. 789. In the chancery cause here propounded as a res judicata to establish the invalidity of the mortgage, and so destroy the plaintiff's title, "the merits" of the cause, as presented and sharply defined by bill and answer, were nothing but this very question of the...