Ezzell v. First Nat. Bank

• Decision Date: 06 December 1928
• Docket Number: 8 Div. 37
• Citation: 218 Ala. 462,119 So. 2
• Parties: EZZELL v. FIRST NAT. BANK OF RUSSELLVILLE.
• Court: Alabama Supreme Court

119 So. 2

218 Ala. 462

EZZELL v. FIRST NAT. BANK OF RUSSELLVILLE.

8 Div. 37

Supreme Court of Alabama

December 6, 1928

Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.

Bill for redemption, etc., by Eva Ezzell against the First National Bank of Russellville. From a decree sustaining demurrer to the bill and dismissing it, complainant appeals. Affirmed in part, and in part reversed, rendered, and remanded.

Williams & Chenault, of Russellville, for appellant.

J. Foy Guin, of Russellville, for appellee.

BROWN J.

This bill is one by the mortgagor, filed pending foreclosure under the power of sale for an accounting and redemption from the mortgages held by the respondent and covering complainant's property, and to enjoin the foreclosure.

As a basis for an accounting, the bill avers: The respondent by agreement took over a sawmill and cut the lumber on the lands covered by the mortgages, agreeing to deduct the operating expenses of $12.50 per thousand, and apply the balance to the mortgage debt, and under this agreement the respondent cut from 125 to 150 thousand feet, which was sold for $20 per thousand and upward. That complainant was represented in this transaction by her brother, A.B. Ezzell, who hauled and transported a great part of the lumber, and for which respondent agreed to pay said Ezzell $3.50 per thousand feet "which said sum of $3.50 per thousand feet should also be credited on said mortgages." That complainant and her brother turned over to the respondent the sawmill located on said property, which the respondent sold for the sum of $450 "which said amount was also to be credited on said mortgages."

The bill avers that the respondent has failed and refused to credit said mortgages as it agreed to do, and avers that the amounts received by the respondent are more than sufficient to pay the mortgage debts, but submits herself to the jurisdiction of the court, and offers to do equity by paying any amount found to be due thereon.

By the demurrers filed to the bill, the respondent asserts that the bill is without equity; that the respondent is not amenable to the jurisdiction and powers of the state court; that under its charter as a national bank, it was without power to engage in the lumber business and the agreement pleaded is ultra vires; that the bill is multifarious, and that on the facts alleged A.B. Ezzell was a necessary party.

By agreement of the parties, the case was submitted to the court on November 12, 1927, for decree on the demurrers to the bill, and on March 31, 1928, the court entered a decree sustaining the demurrers and dismissing the bill, without affording the complainant an opportunity to amend the bill.

The rule of our decisions is that a mortgagor in possession may, without previous tender, file a bill to protect and enforce his equity of redemption, and have a judicial ascertainment of the amount of the mortgage debt, though there is no juristic controversy as to the amount due; and a mere offer to do equity by paying the amount ascertained to be due by the court is all that is necessary to give the bill equity. Boyd et al. v. Dent, 216 Ala. 171, 113 So. 11.

And pending such bill for redemption the mortgagee cannot impair the right of the mortgagor to redeem under his equity of redemption. Carroll v. Henderson, 191 Ala. 248, 68 So. 1; Thompson v. Atchley, 201 Ala. 398, 78 So. 196; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Burns v. Mortgage Bond Co. of N.Y., 199 Ala. 77, 73 So. 987.

And where, as here, taking the averments of the bill as true, as must be done on demurrer, the mortgagee has received and has in its possession money which should be applied in reduction or discharge of the mortgage debt, and refuses to so apply such money, the mortgagor may maintain a bill for an accounting and redemption, and to compel application of the funds to the reduction of the mortgage debt. Johnson v. Smith, 190 Ala. 522, 67 So. 401. This is true, though the funds have been acquired by the defendant in the exercise of acts not within its corporate powers, and are ultra vires. 7 R.C.L. 677; German Nat. Bank v. Meadowcroft, 95 Ill. 124, 35 Am.Rep. 137; Rankin v. Emigh, 218 U.S. 27, 30 S.Ct. 672, 54 L.Ed. 915; Emigh v. Earling, 134 Wis. 565, 115 N.W. 128, 27 L.R.A. (N.S.) 243.

National banks as to such matters are citizens of the state of their domicile, and subject to the jurisdiction of the state courts, as other citizens. Petri v. Commercial Nat. Bank of Chicago, 142 U.S. 644, 12 S.Ct. 325, 35 L.Ed. 1144; Ex parte Jones, 164 U.S. 691, 17 S.Ct. 222, 41 L.Ed. 601; Continental Nat. Bank of Memphis v. Buford, 191 U.S. 119, 24 S.Ct. 54, 48 L.Ed. 119; Guthrie v. Harkness, 199 U.S. 148, 26 S.Ct. 4, 50 L.Ed. 130, 4 Ann.Cas. 433; 3 R.C.L. 689, §§ 321, 322.

The relief sought relates to the same property and between the same parties, and it is not subject to the objection that it is multifarious. Code of 1923, § 6526; Forcheimer v. Foster, 192 Ala. 218, 68 So. 879; Webb et al. v. Butler et al., 192 Ala. 287, 68 So. 369, Ann.Cas.1916D, 815; Mitchell et al. v. Cudd, 196 Ala. 162, 71 So. 660.

The bill seeks to have credited on...