Cunningham v. Andress

• Decision Date: 22 May 1958
• Docket Number: 1 Div. 726
• Citation: 267 Ala. 407,103 So.2d 722
• Parties: Corra CUNNINGHAM et al. v. W. J. ANDRESS, Jr. et al.
• Court: Alabama Supreme Court

Page 722

103 So.2d 722

267 Ala. 407

Corra CUNNINGHAM et al. v. W. J. ANDRESS, Jr. et al.

1 Div. 726.

Supreme Court of Alabama.

May 22, 1958.

Hare & Bonham, Monroeville, for appellants.

B. E. Jones & R. L. Jones and John M. Coxwell, Monroeville, for appellees.

LAWSON, Justice.

This is an appeal from a decree of the circuit court of Monroe County, in equity, sustaining demurrers to appellants' amended bill.

The subject of the litigation is thirty-nine and one-half acres of land situate in the NE 1/4 of Section 2, Township 6, Range 7, in Monroe County which, on October 29, 1931, was mortgaged by Alex Cunningham and his wife, Corra, to W. J. Andress to secure an indebtedness of $2,961.74.

The original bill was filed on July 28, 1956, by Corra Cunningham and six other persons against (1) the 'executors' of the estate of W. J. Andress, deceased; (2) the heirs of W. J. Andress; (3) J. T. Hines, W. W. Eddins and W. T. Thames, who are alleged to 'claim an interest in said tract or a part thereof by transfer or attempted transfers from certain heirs of the deceased mortgagee, W. J. Andress'; and (4) C. J. McCall, L. T. McCall and D. L. McCall, who are alleged to 'hold a mortgage on the interest claimed by respondent, W. T. Thames.'

The complainants in their bill seek to redeem from an alleged void tax sale, an accounting and to enforce the equity of redemption of the 1931 mortgage which is alleged to have been never foreclosed. The bill also prayed that 'complainants be allowed to redeem the said land and property with the claims or clouds of respondents voided and removed therefrom.'

The original bill was amended so as to make Gertrude Andress a party respondent in her individual capacity and as executrix of the estate of her husband, who was a party respondent to the original bill but died after it was filed.

The 'executors' of the estate of W. J. Andress, deceased, interposed demurrer to the bill as amended. A demurrer was filed on behalf of the 'heirs at law and devisees under the will of W. J. Andress, deceased.' Mrs. Gertrude Andress joined in that demurrer. J. T. Hines, W. W. Eddins, W. T. Thames and Selwyn Andress joined in filing a demurrer to the bill as amended.

The trial court rendered a decree on March 25, 1957, sustaining each of the demurrers. From that decree this appeal has been taken and errors have been assigned so as to present for our consideration the action of the trial court in sustaining each of the three separate demurrers.

All of the demurrers were addressed to the bill as a whole. Hence, if one or more aspects of the bill are good as against the demurrer interposed, then the decree sustaining the demurrers must be reversed. Gibson v. Hall, 260 Ala. 539, 71 So.2d 352; Horan v. Horan, 259 Ala. 117, 65 So.2d 486; Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779; Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517; Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417.

As we have heretofore indicated, in one aspect of the bill the complainants seek to exercise the equity of redemption of the unforeclosed mortgage executed by Alex and Corra Cunningham to W. J. Andress in October of 1931.

A mortgagor of real estate, before foreclosure, has an equity of redemption therein and a court of equity has original jurisdiction to enforce this equity. A bill by the mortgagor against the mortgagee, disclosing such equity of redemption, submitting to the jurisdiction of the court, offering to pay the amount ascertained to be due on the mortgage debt and, thereupon, praying a surrender and cancellation of the mortgage, contains equity. No tender or excuse for not making tender is essential to the equity of the bill. No controversy or occasion for an accounting as to the amount of the mortgage debt need be shown. These principles have been declared in a long line of decisions. Wesson v. Taylor, 240 Ala. 284, 198 So. 848, and cases cited; Edmondson v. Martin, 256 Ala. 73, 53 So.2d 613; Peterson v. Home Savings & Loan Ass'n, 258 Ala. 505, 63 So.2d 561; Murphree v. Summerlin, 114 Ala. 54, 21 So. 470; Hawkins v. Snellings, 255 Ala. 659, 53 So.2d 552; McGowan v. Williams, 241 Ala. 588, 4 So.2d 164; Macke v. Scaccia, 222 Ala. 359, 132 So. 880.

Twenty-five and one-half acres of the land covered by the mortgage in question was owned by Alex Cunningham. The other fourteen acres was owned by Corra Cunningham. The land of Alex and that of Corra adjoined and at the time the mortgage was executed all of it was 'within one enclosure or defined and obvious boundary.' There were no 'dividing fences or divisions.' Alex and Corra 'lived in a large and comfortable house situated on the 39 1/2 acre tract,' which the bill avers constituted their homestead. So it appears that in executing the mortgage Corra Cunningham did so as a co-debtor and as owner of fourteen acres of the land and in order to release her dower and homestead rights in Alex's twenty-five and one-half acres.

Alex Cunningham died on August 7, 1936, so his wife, Corra Cunningham, had such an interest in all of the property covered by the mortgage as to make her a proper person to file a bill to enforce the equity of redemption as to the entire thirty-nine and one-half acres of land. Butts v. Broughton, 72 Ala. 294; Morgan Plan Company v. Bruce, 262 Ala. 314, 78 So.2d 650; Rainey v. McQueen, 121 Ala. 191, 25 So. 920. In Butts v. Broughton, supra, 72 Ala. 298, this court said:

'A bill to redeem a mortgage may be filed by anyone who owns the mortgagor's equity of redemption, or any subsisting interest in it, by privity of title with him, whether by purchase, inheritance, or otherwise. This principle would embrace not only heirs of the mortgagor, but also his widow who had joined with him in the mortgage, so as to have released her dower. [Authorities cited] So, an estate of homestead in the mortgaged premises entitles the holder of it to redeem. 2 Jones on Mortgages, § 1069.'

The six other complainants apparently claim under the statute of descent and distribution as the heirs of Alex Cunningham. But there is nothing in the bill to show that Alex Cunningham died intestate. For aught appearing he could have left a will leaving his property to a person or persons other than these so-called heirs. It is a well settled rule in equity pleading that a bill of complaint should show by clear and unambiguous averments the complainant's right, title or interest in and to the subject matter of the suit. Bond v. McFarland, 217 Ala. 651, 117 So. 63; Anderson v. Byrd, 251 Ala. 257, 37 So.2d 115; Case v. Pfaffman, 253 Ala. 511, 45 So.2d 453. Equity Rule 67, Code 1940, Tit. 7 Appendix, relieves certain stringencies in so far as the relief that may be granted to some but not all complainants. But that rule does not make a bill free from demurrer for adding as complainants parties who are not united in interest in the relief sought. Kelly v. Kelly, 250 Ala. 664, 35 So.2d 686; Holder v. Taylor, 233 Ala. 477, 172 So. 761; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084.

However, there was no ground of demurrer which took the point that there was a misjoinder of parties complainant or that the amended bill failed to show the right, title or interest on the part of some of the complainants in the subject matter of the suit. Of course, it is the grounds of the demurrers which were assigned to the bill as amended which are here for review. Thompson v. Thompson, 107 Ala. 163, 18 So. 247.

As we have heretofore indicated, the complainant Corra Cunningham is shown to be a proper party to seek to enforce the equity of redemption of all of the land covered by the mortgage.

The mortgagee is not a party respondent. He died on January 28, 1948. The bill shows that the mortgagee died testate, hence his executors were correctly made parties respondent. Carwile v. Crump, 165 Ala. 206, 51 So. 744. The heirs were correctly made parties in view of the aspect seeking to enforce the equity of redemption. Smith v. Murphy, 58 Ala. 630; Jacobs v. Murphy, 245 Ala. 260, 16 So.2d 859; Carwile v. Crump, supra. The purchasers of the lots were certainly proper parties to that aspect seeking to exercise the equity of redemption under the rule that those who have an interest liable to be affected should be joined. 59 C.J.S. Mortgages § 866(3), p. 1679; Carlin v. Jones, 55 Ala. 624; Amann v. Burke, 237 Ala. 380, 186 So. 769.

Some of the respondents below assert that those grounds of their demurrers taking the points that the bill was multifarious and that there is a misjoinder of parties respondent were properly sustained because they have no interest in some of the aspects of the bill; for instance, the aspect which seeks an accounting. But it is well established that it is not necessary that all parties to the bill should have an interest in all of the matters in controversy, but it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others. Littleton v. Littleton, 238 Ala. 40, 188 So. 902; Truss v. Miller, 116 Ala. 494, 22 So. 863. In the instant case we think it clear that the objecting respondents have an interest in that aspect of the bill seeking to enforce the equity of redemption and that they are thereby sufficiently connected with the other matters in controversy as to render inappropriate these grounds of the demurrers. Allgood v. Bains, 247 Ala. 669, 26 So.2d 98; Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751; Hill v. Rice, 259 Ala. 587, 67 So.2d 789. See Equity Rule 15.

What has been said is sufficient to disclose our view that the objections of multifariousness and misjoinder of parties respondent are not well taken.

The bill is good as against the grounds of the demurrers which took the point that the bill is without equity. It is a bill by a mortgagor against those claiming under the mortgagee to be permitted to exercise the equity of redemption of an unforeclosed mortgage. The complainant Corra...