Ezzell v. Richardson

• Decision Date: 05 June 1930
• Docket Number: 8 Div. 179.
• Citation: 128 So. 783,221 Ala. 346
• Parties: EZZELL v. RICHARDSON ET AL.
• Court: Alabama Supreme Court

128 So. 783

221 Ala. 346

EZZELL v. RICHARDSON ET AL.

8 Div. 179.

Supreme Court of Alabama

June 5, 1930

Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr. Judge.

Bill to foreclose a mortgage by Gertrude Ezzell against Robert L Richardson, Arka D. Richardson, and William T. Richardson. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Travis Williams, of Russellville, and Kirk & Rather, of Tuscumbia for appellant.

Key & Key, of Russellville, for appellees.

GARDNER J.

The amended bill seeks the foreclosure of a real estate mortgage executed by Robert L. and William T. Richardson to John T. and Laura O. Ezzell to secure four promissory notes due on different dates, which notes were payable to said John T. and Laura O. Ezzell jointly.

It is a well-settled rule of equity pleading that complainant's title should be stated with sufficient clearness and certainty to enable the court to see clearly he has such a right as warrants its interference. Overton v. Moseley, 135 Ala. 599, 33 So. 696; Eutaw Ice, Water & Power Co. v. Town of Eutaw, 202 Ala. 143, 79 So. 609; Cockrell v. Gurley, 26 Ala. 405; 21 Corpus Juris 397.

The bill shows a parol gift of two of said notes by John T. Ezzell to complainant which would suffice to that extent as an equitable assignment of the mortgage given as part security therefor. Harton v. Little, 176 Ala. 267, 57 So. 851; Lunsford v. Marx, 212 Ala. 144, 102 So. 110; Herring v. Elliott, 218 Ala. 203, 118 So. 391. But these notes are made exhibit to the bill, and disclose that both John T. and Laura O. Ezzell are payees named therein, and in face of such situation we think the bill should show how John T. Ezzell, complainant donor, acquired the entire title thereto. Failing in this respect, complainant's title is not stated with sufficient clearness and certainty to meet the requirement of good pleading.

The mortgage, also an exhibit to the bill, is made jointly to John T. and Laura O. Ezzell. There is no pretense of any assignment thereof to complainant. The legal title to the land is therefore shown to be in John T. and Laura O. Ezzell jointly. The court will not proceed to a foreclosure in the absence of the legal title, and these parties or their representatives are indispensable parties to this suit-an objection which may be taken by the court ex mero motu. Langley v. Andrews, 132 Ala. 147, 31 So. 469; Federal Land Bank v. Branscomb, 213 Ala. 567, 105 So. 585; Lunsford v. Shannon, 208 Ala. 409, 94 So. 571; Rountree v. Satterfield, 211 Ala. 464, 100 So. 751; Lunsford v. Marx, supra; Snodgrass v....