Burns v. Austin

• Decision Date: 06 October 1932
• Docket Number: 7 Div. 103.
• Citation: 225 Ala. 421,143 So. 824
• Parties: BURNS v. AUSTIN ET AL.
• Court: Alabama Supreme Court

143 So. 824

225 Ala. 421

BURNS v. AUSTIN ET AL.

7 Div. 103.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Bill in equity by Wallace Knox Austin, and others, against R. B Burns.From a decree for complainants, respondent appeals.

Corrected and affirmed.

Merrill Jones, Whiteside & Allen, of Anniston, for appellant.

Harrison & Stringer, of Talladega, for appellees.

BROWN J.

Appellant's first contention is that the bill as amended was subject to the objection pointed out by the 20th ground of demurrer"for that the date of the death of Bethany Knox is not alleged with sufficient certainty."The averment in this respect is that "Bethany Knox died intestate prior to the filing of the original bill."

Taking the averments of the amended bill as true, which must be done on demurrer, default has been made in the payment of the entire indebtedness secured by the mortgage, and, under the stipulations in the mortgage accelerating the right of foreclosure, the failure to pay any one of the payments provided for in the mortgage, conferred on the complainants, who are alleged to be the owners of the debts secured thereby, the right of foreclosure, and therefore the date of the death of Bethany Knox is not material to the equity of the bill.Stathis v. Sparks,220 Ala. 689, 127 So. 169.

The next contention is that the court erred in overruling the 9th ground of demurrer to the bill as amended, that "it does not appear what amount, if any, is due under said mortgage to P. C. Lambert."

The indebtedness due to P. C. Lambert under the terms of the mortgage was at least $25, payable on the death of Bethany Knox.This was sufficient to give the court, sitting in equity, jurisdiction to entertain the bill.Hall v. Cannte & Wife,22 Ala. 650;Campbell & Wright v. Conner,78 Ala. 211;Bell, Adm'r, v. Montgomery Light Co.,110 Ala. 651, 19 So. 188;3 Mayf. Dig. 185, (a) 4.

Neither the averments of the bill nor the stipulations in the mortgage authorize the allowance of solicitor's fees for a foreclosure in equity (Mayfield Digest 230, (a) 43], and the fact that the bill prays for the allowance of such fees-relief not warranted by the averments of the bill-does not render it subject to demurrer.Wilks et al. v. Wilks,176 Ala. 151, 57 So. 776;Thomas v. Skeggs,213 Ala. 159, 104 So. 395.

It does not appear on the face of the bill that the complainants have been guilty of laches, or that the demands which the bill seeks to enforce are stale, and the grounds of demurrer taking this point were not well taken.Woods et al. v. Wright,223 Ala. 173, 134 So. 865;Phillips et al. v. Phillips et al.,223 Ala. 475, 136 So. 785;Walshe v. Dwight Mfg. Co.,178 Ala. 310, 59 So. 630;Lovelace v. Hutchinson,106 Ala. 417, 17 So. 623.

As a general rule the personal representative of a deceased mortgagor is a proper party to a bill to foreclose, and in some cases a necessary party, but where, as here, the mortgagor, prior to his death, parted with all his rights, title, and interest in the mortgaged property, and the sole purpose of the bill is to subject the mortgaged property to the satisfaction of the debts secured, and no accounting against the mortgagor or decree over against his estate is sought, and the heirs at law of the deceased mortgagor are before the court as complainants, his personal representative is not a necessary party.Inge et al. v. Boardman,2 Ala. 331;Eslava v. New York National Building & Loan Ass'n,121 Ala. 480, 25 So. 1013;Shelton et al. v. Timmons,189 Ala. 289, 66 So. 9;Carwile et al. v. Crump et al.,165 Ala. 206, 51 So. 744.The demurrers to the bill as amended were, therefore, properly overruled.

The evidence clearly justifies the conclusion that the mortgage, which complainants seek to foreclose, was given by W. E. Knox to his mother in the purchase of the property, in consideration of which he was to pay to her $100 per year for her support, or to furnish support and maintenance for her in his home, and to pay the amounts stipulated to the others named in the mortgage as part of the purchase price; that when W. E. Knox conveyed the property to appellant, Burns, in satisfaction of the mortgage, or mortgages, executed by Bethany Knox and W. E. Knox to Burns, he, Burns, assumed the payment of the debts secured by the mortgage in question as a part of the purchase price for the property.

We entertain no doubt that Burns, in his dealings with Bethany Knox and W. E. Knox, had full knowledge of the existence of the mortgage in question, and the conclusion that he assumed the payment of the several sums which W. E. Knox agreed to pay, is supported by the fact that he...