Cudd v. Reynolds

• Decision Date: 16 April 1914
• Docket Number: 761
• Citation: 65 So. 41,186 Ala. 207
• Parties: CUDD v. REYNOLDS.
• Court: Alabama Supreme Court

65 So. 41

186 Ala. 207

CUDD v. REYNOLDS.

No. 761

Supreme Court of Alabama

April 16, 1914

Appeal from Chancery Court, Cullman County; W.H. Simpson Chancellor.

Bill by V.A. Reynolds against J.J. Cudd to cancel certain mortgages. Decree overruling demurrer to the bill, and respondent appeals. Reversed and remanded.

The bill alleges that complainant was seised and possessed of certain described real estate, and that on February 22, 1910 without any valuable consideration, she with her husband signed two mortgage deeds in certain sums conveying said lands to respondent, and that her husband joined in the execution of said mortgages, which were retained by respondent, and recorded in a certain book in the probate office. It is averred that said mortgage deeds are void for the reason that they were given by complainant to secure the debts of her husband, who was indebted to the said Cudd, and that she was not indebted to him in any amount. The bill also alleged the mental weakness of her husband, etc.

E.W Godbey, of Decatur, for appellant.

Emil Ahlrichs, of Cullman, for appellee.

McCLELLAN J.

The decree overruling the demurrer was rendered March 6, 1913. The appeal was taken April 4, 1913; and was returnable the first Monday beyond 20 days after April 4, 1913. Code, § 2870. The cause was, for the first time, docketed in this court November 24, 1913, during the next term succeeding beyond final adjournment, that in which the appeal was taken, viz., 1912-13. The spring call of the docket of the Sixth division for the term 1912-13 was April 21, 1913. It thus appears the final appeal was not returnable until after the Monday opening the call of the Sixth division, thus distinguishing this appeal from those dismissed in Porter v. Martin, 139 Ala. 318, 35 So. 1006, and Southern Railway Co. v. Abraham, 161 Ala. 317, 49 So. 801.

The appeal was submitted at the first call of the division after the date it was returnable. No prejudice to appellee appears to have resulted. The motion to dismiss the appeal is therefore overruled.

This bill is by appellee against appellant only, and seeks the cancellation of two mortgages on the wife's (appellee's) real estate, given, it is averred, to appellant to secure the debts of the husband. Code, § 4497. Demurrer to the bill was overruled. The appeal is from that decree.

On the face of the mortgages in question a joint and several liability, for the payment of the indebtedness thereby intended to be secured, appears to have been assumed by the complainant and L.R. Reynolds, complainant's husband. L.R. Reynolds is not made a party to the bill; and the demurrer makes objection based upon this omission.

"It is a general rule, in suits for rescission or cancellation, that all persons whose rights, interests, or relations with or through the subject-matter of the suit would be affected by the cancellation or rescission should be brought before the court, so that they can be heard in their own behalf." 6 Cyc. p. 319.

The status upon which the statute (Code, § 4497) operates to avoid a mortgage given by the wife on her property is that...