Dean v. Griffith

• Decision Date: 10 March 1952
• Docket Number: 6 Div. 334
• Citation: 257 Ala. 67,57 So.2d 545
• Parties: DEAN v. GRIFFITH.
• Court: Alabama Supreme Court

Page 545

57 So.2d 545

257 Ala. 67

DEAN v. GRIFFITH.

6 Div. 334.

Supreme Court of Alabama.

March 10, 1952.

Sapp & Sapp. Cullman, for appellant.

Finis E. St. John, Cullman, for appellee.

FOSTER, Justice.

This suit comes here on appeal by complainant, who was cross-respondent in a cross-bill, from a decree overruling demurrer to the cross-bill.

The chief controversy is whether the complainant has lost her right to redeem certain property under mortgage by virtue of the terms of the deed to the mortgagee containing a right to redeem.

The land was owned by the husband of complainant at the time of his death. He left the widow and two sons as his sole heirs at law. The widow claimed homestead and dower rights. She and one son Lewis Dean at different times executed two mortgages on the land to appellee. The debt was not paid when due. Whereupon, she and this son and his wife executed a deed dated August 23, 1949, reciting a consideration of one dollar and other valuable consideration, conveying the land to appellee. The deed contained the following clause: 'The foregoing conveyance is a deed executed in lieu of foreclosure of (the two mortgages, describing them). It being understood that the grantors herein have two years to redeem said land by the payment of the amount of the indebtedness, together with legal charges and interest, and any other indebtedness the grantors owe the grantee.'

The widow was the only complainant. The bill was filed within two years and offered to pay the debt and all lawful charges claimed by respondent as may be ascretained by decree of the court, and submitted herself to the jurisdiction of the court offering to do equity. There was no demurrer to the bill, but appellee made answer and cross-bill, in which the son Lewis Dean was brought in as a party. Lewis appeared and disclaimed interest, alleging that he had conveyed his rights to complainant.

The answer alleged that on January 9, 1950, the respondent filed a suit in equity against the other son of deceased, named William E. Dean, claiming a half interest, with William E. Dean owning a half interest, and seeking a sale for division. Proceedings were had and a decree rendered ordering the land sold for division. Complainant and Lewis Dean were not made parties. A copy of the decree was attached as an exhibit to the bill, and recited the existence of the mortgages, above mentioned, and the deed in lieu of the foreclosure, and ordered the sale to be subject to the right of redemption in an undivided one-half interest, which would expire August 23, 1951. At the sale, appellee was the purchaser, and 'made demand on Dovie Dean and Lewis Dean for possession of said property.' But they retained possession of the home place and a portion of said land on which the same is situated, extending to the time of the filing of the cross-bill. That after said demand was made, and on to wit, April 27, 1950, respondent sued Dovie Dean and Lewis Dean in ejectment for the recovery thereof, and obtained a judgment by default. A writ of possession was issued, but was never executed. That as a result of the failure of Dovie Dean and Lewis Dean to surrender possession upon demand, they have forfeited their right to redemption. It called upon Lewis Dean to assert any right, title or interest he might have in the property, and prayed for a final decree declaring that complainant and Lewis Dean have no right to redeem, that their right was forfeited, and that the title of cross-complainant be quieted against cross-respondent.

The contentions of appellant on this appeal from the decree overruling her demurrer to the cross-bill are that, there is no need of a cross-bill on account of the claim to quiet the title because the right to do so is involved in an answer setting up the matter showing that complainant has no right to redeem, and because the provisions of section 1109, Title 7, Code, were not met, especially by alleging that cross-complainant was in the peaceable possession of the land.

As to the latter contention, it is sufficient to say that such requirement is not necessary in a cross-bill, where by the bill the title to the property is to be determined between the parties. Smith v. Rhodes, 206 Ala. 460(3), 90 So. 349; Sloss-Sheffield Steel & Iron. Co. v. Lollar, 170 Ala. 239, 54 So. 272; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202.

As to the first contention noted above, we observe that the rule is thoroughly well established that where a party defendant can obtain full relief on his answer, a cross-bill should not be entertained. Becker Roofing Co. v. Meharg, 223 Ala. 163, 134 So. 864; 8 Ala.Dig. p. 515 et seq. (Equity) k196, and 16 Ala.Dig. (Quieting Title) k39. A cross-bill is available to a defendant in a statutory bill to quiet title only if the defendant seeks affirmative relief other than a mere declaration as to the title. Collier v. Alexander, 138 Ala. 245, 36 So. 367; Sloss-Sheffield Steel & Iron Co. v. Lollar, supra.

In the case of Smith v. Rhodes, supra, the cross-bill not only sought the quieting of title, which was involved in the original bill also to quiet title, but in addition the cross-bill sought to have a decree for damages for removing valuable timber from the land and sought an injunction restraining the cross-defendant from cutting the timber.

In the case of Burdett v. Rossiter, supra, the cross-bill not only sought to have the title quieted, but it also sought to effect a redemption authorized by a statute specially applicable. Without such prayer to obtain affirmative relief, other than a mere declaration of the state of the title, a cross-bill cannot be sustained. Lamar v. Lincoln Reserve Life Ins. Co., 222 Ala. 60, 131 So. 223; Graham v. O'Neal, 242 Ala. 72, 4 So.2d 897. A statutory cross-bill is available to bring in a new party in order to obtain complete relief. Rule 26, Equity Practice, Code 1940, Tit. 7 Appendix; Patton v. Birmingham Trust & Savings Co., 235 Ala. 586, 180 So. 264.

The case of Bell v. Propst, 220 Ala. 641, 127 So. 212, was a suit in equity, wherein the complainant in possession sought to exercise the right of redemption from a tax sale, provided in what was section 3108 of the Code of 1923 which is section 296, Title 51, Code of 1940. A cross-bill was sustained which sought to quiet the title and for general relief upon the theory that cross-complainant was entitled to affirmative relief in the event the original complainant failed to exercise the redemption which he sought, and upon such failure the cross-complainant was entitled to have his title quieted and to be put in possession. National Fireproofing Corp. v. Hagler, 226 Ala. 104, 145 So. 421.

These principles apply to the present situation, and justify the cross-bill in the instant case.

The chief question which the parties have argued on this appeal, as we have said, is whether or not the complainant has the right to redeem as prayed for in the bill, and that depends upon an interpretation and application of that feature of the deed dated August 23, 1949, to which we have referred.

Our research fails to disclose a case which is directly in point,...