Fair v. Cummings
| Decision Date | 11 May 1916 |
| Docket Number | 8 Div. 868 |
| Parties | FAIR v. CUMMINGS. |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1916
Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.
Bill by Etta B. Fair against W.S. Cummings for the cancellation of a mortgage. From a decree overruling a motion for dissolution of an injunction granted to the defendant, plaintiff appeals. Motion to dismiss appeal overruled, and decree reversed and rendered.
Appellants filed a bill in this cause against the appellee seeking the cancellation of a certain mortgage executed to the respondent, on certain real estate situated in Decatur, Ala with a prayer also for general relief. The bill sets up among other things, that the mortgage was without consideration and that its execution was procured through threats and duress by the mortgagee. the bill also shows that the mortgagee proposes to foreclose said mortgage and that notice to that effect has been posted. a temporary writ of injunction was prayed, to prevent the sale of said property but none was ever issued. The bill was filed August 14, 1914. An amendment to the bill was filed on September 2, 1914, setting up the foreclosure of said mortgage over the protest of complainants, and the purchase of the property by the mortgagee. The amendment to the bill prayed also for cancellation of the foreclosure deed, if one was executed.
The answer to the bill denied the material averments upon which complainants sought the cancellation of the mortgage, set up that $3,500 was due thereon, and denied any duress. Respondent also asked that his answer be made a cross-bill, and it was prayed that the foreclosure of said mortgage, which was made after the bill was filed, be by the decree of the court ratified and confirmed. The original bill alleged that the complainants were the owners and were in possession of the said property. And this does not seem to have been specifically denied in the answer. On May 3, 1915, the respondent filed an amendment to the cross-bill, which he designates as "a petition for injunction." The said amendment or petition alleged the foreclosure of said mortgage and the purchase of the real estate by the respondent, and that he was therefore the owner of the same, and as such was entitled to collect the rents due on said property. It is further alleged that the complainants, or one of them, has interfered with the rental of said place by the agent of respondent, and that unless the complainants to the original bill are enjoined from interfering with the defendant in renting said property and collecting his rent he will lose the rents during the pendency of this suit, as the complainants are insolvent. A temporary injunction was asked, restraining the complainants from trespassing on the premises or in any manner interfering with the petitioner's tenants and with his collecting the rent from the occupants of said houses. The injunction was issued prayed.
On June 5, 1915, motion was made by the complainants to dissolve said injunction. On July 31, 1915, a decree was entered overruling said motion, and on August 9th, thereafter complainants prosecuted their appeal to this court from said decree. The record shows that a few days prior to the filing of the appeal bond, to wit, August 4, 1915, the complainants filed an application with the register for the oral examination of said witnesses, and that on said date commission was issued for the taking of the testimony; that subsequent thereto, on August 14, 1915, complainants examined several witnesses in their behalf on the merits of the case; that by agreement witnesses were also examined on behalf of the respondent; and that no objection was made by the complainants to such proceedings after the rendition of said decree upon which the appeal was sought.
G.O. Chenault, of New Decatur, for appellant.
Wert & Lynne, of Decatur, for appellee.
On the Motion.
Motion is made by counsel for appellee to dismiss this appeal, upon the ground that, after the rendition of the decree overruling the motion to dismiss the temporary injunction, the complainants proceeded with the examination of witnesses upon the merits of the case. It is insisted that this was a waiver of the right to review by appeal the said decree.
The original bill attacked the validity of the mortgage, for want of consideration, duress, etc. The injunction sought by the cross-complainant was merely an incident to the main cause, and the decree overruling the motion to dissolve the same in no manner affected the merits of the case. In short, the merits of the case were in no manner involved in the question of dissolution or retention of the temporary writ of injunction. We are unable, therefore, to see how the mere fact that the complainants proceeded to the examination of witnesses on the merits of the case could in any manner be construed as a waiver of the appeal on the decree overruling the motion to dissolve the injunction.
The motion to dismiss the appeal is therefore overruled.
On the Merits.
The respondent prayed that his answer is taken as a cross-bill and that the foreclosure had after...
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... ... the sale, any purchaser at such sale would take title subject ... to the sale being set aside by a court of equity. Fair v ... Cummings, 197 Ala. 131, 72 So. 389. After a careful ... consideration of the submission on pleadings and proof, we ... are of opinion that ... ...
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Woodstock Operating Corp. v. Quinn
...of equity has not the jurisdiction "to take property from the possession of one party and put it in the possession of another." Fair v. Cummings, 72 So. 389; Yellow Pine Ex. Co. v. Sutherland, 141 Ala. 664, So. 922; Chappell v. Roberts, 140 Ala. 324, 37 So. 241; Mobile Co. v. Knapp, supra. ......
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Hunter-Benn & Co. Company v. Bassett Lumber Co., 1 Div. 700.
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...68 So. 1; Moore v. Berryman, 224 Ala. 555, 141 So. 192; Ezzell v. First Nat. Bank of Russellville, 218 Ala. 462, 119 So. 2; Fair v. Cummings, 197 Ala. 131, 72 So. 389; Johnson v. Smith, 190 Ala. 521, 67 So. 401; v. Valentine et al., 220 Ala. 626, 127 So. 219. Inasmuch as the court found tha......