Cox v. Brown

• Decision Date: 07 December 1916
• Docket Number: 6 Div. 82
• Citation: 73 So. 964,198 Ala. 638
• Parties: COX v. BROWN.
• Court: Alabama Supreme Court

73 So. 964

198 Ala. 638

COX v. BROWN.

6 Div. 82

Supreme Court of Alabama

December 7, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by W.A. Brown against J.W. Crumley, personally, and as administrator of Sarah J. Crumley, deceased. On death of defendant pending suit, the cause was continued against L.J Cox, as administrator de bonis non of Sarah J. Crumley and as administrator of J.W. Crumley, and by amendment against the heirs at law of Sarah J. Crumley. Decree for complainant, and respondents appeal. Affirmed.

Robert N. Bell and R.D. Coffman, both of Birmingham, for appellants.

Frank S. Andress, of Birmingham, for appellee.

SOMERVILLE J.

The bill was filed by complainant to foreclose a mortgage on land jointly executed by Sarah J. Crumley and J.W. Crumley to complainant in 1903, to secure their joint promissory note of even date. The recital in the mortgage is: "For and in consideration of Sarah J. Crumley's and J.W Crumley's indebtedness to W.A. Brown, etc." Sarah J. Crumley being dead, the bill was filed against J.W. Crumley, personally, and as administrator of Sarah J. Crumley; and, upon the death of the former pending suit, the cause was continued against L.J. Cox, as administrator de bonis non of Sarah J., and as administrator of J.W. Crumley, and, by amendment, against the heirs at law of Sarah J. The answers denied both the validity of the mortgage and the mortgagors' ownership of the land, and Cox's answer also denied that the notes were given for the debt of his intestate Sarah J. Crumley. Upon submission on pleadings and proof, the chancellor rendered a final decree dismissing the bill of complaint on October 15th; but on complainant's seasonable motion for a rehearing this decree was set aside, and in its stead a final decree was rendered on November 13th, following, granting the relief prayed for. Respondents appeal from this decree, and complain: (1) That it is not supported by the evidence; (2) that, after the first decree and before the last, the bill was materially amended, and an ex parte affidavit introduced in evidence by complainant and considered by the chancellor in support of the bill, without notice to respondents of either; and (3) that the chancellor, after granting the rehearing and vacating the first decree, without notice to respondents, proceeded to render the final decree for complainant without a resubmission of the cause.

1. The only evidence offered by complainant was the mortgage and notes, which were self-proving in the absence of any impeachment by special pleas; complainant's deposition showing that the indebtedness was unpaid except for two small payments aggregating about $18; and a deposition proving the amount of a reasonable attorney's fee.

The only evidence offered by respondents was the bill of complaint in a chancery case, wherein two of the respondents were complainants and Sarah J. and Jno. W. Crumley were defendants, and the decree thereon divesting title to the lands in question out of the said defendants and into the said complainants. The bill was filed in 1909, and the decree was rendered in 1910. The present complainant was not a party to that proceeding, and there is nothing in this record to show that this complainant had any notice of the trust in favor of these two respondents, which was enforced in that proceeding against Sarah J. Crumley, as holder of the legal title. On the proceeding and evidence submitted, the complainant was entitled to the relief prayed for--for the foreclosure of the mortgage.

Prima facie, the mortgage and notes imported a joint obligation by both mortgagors as principals upon an original debt, and the burden was on respondents herein to show that the mortgaged premises belonged to Sarah J. Crumley, and that her obligation was in fact that of a surety to pay the debt of her husband. Lunsford v. Harrison, 131 Ala. 263, 31 So. 24; Gafford v. Speaker, 125 Ala. 498, 27 So. 1003; Gibson v. Wallace, 147 Ala. 322, 41 So. 960; Mills v. Hudmon, 175 Ala. 448, 57 So. 739.

And as against a grantor, or his privies, it is not necessary for...