Grace v. Montgomery

• Decision Date: 02 February 1922
• Docket Number: 7 Div. 245.
• Citation: 92 So. 412,207 Ala. 188
• Court: Alabama Supreme Court
• Parties: GRACE v. MONTGOMERY.

92 So. 412

207 Ala. 188

GRACE v. MONTGOMERY.

7 Div. 245.

Supreme Court of Alabama

February 2, 1922

Appeal from Circuit Court, Clay County; W. L. Longshore, Judge.

Bill by M. B. Grace against W. H. Montgomery to redeem land or foreclose a second mortgage on the land. From a decree sustaining demurrers to the bill and also sustaining pleas 1 and 2, the complainant appeals. Reversed and remanded.

Grace &amp Simpson, of Birmingham, for appellant.

McKay &amp Crumpton, of Ashland, for appellees.

ANDERSON C.J.

A junior mortgagee has no separate or independent equity to compel the foreclosure of a senior mortgage. Lehman v Gunn, 124 Ala. 213, 27 So. 475, 51 L. R. A. 112, 82 Am. St. Rep. 159; Ware v. Hamilton Shoe Co., 92 Ala. 145, 9 So. 136; Kelly v. Longshore, 78 Ala. 203. The case of Davis v. Cook, 65 Ala. 617, has been, in effect, overruled on this point by the cases supra.

But when the bill seeks an accounting and discovery and the ascertainment of the amount due on the mortgage to the end that the obstacle that it presented to the foreclosure of the second mortgage might be removed as the court might direct, it contains equity. Penny v. Miller, 134 Ala. 593, 33 So. 668, and cases there cited.

Moreover, under the facts disclosed by the bill the complainant would be entitled to redeem if the senior mortgage has not been foreclosed, or if foreclosed within less than two years before the bill was filed, notwithstanding the special prayer is to compel a foreclosure, as this relief, not being foreign to or inconsistent with the special relief sought, can be obtained under the general prayer, provided, of course, the complainant complies with the law as to tender, in case of statutory redemption, or offers to pay, in case of an equity of redemption-a point not raised by any of the grounds of demurrer interposed. As we understand the bill it sets up a mortgage from W. H. Montgomery to Worthy and Lynch and an assignment from Worthy, not joined in by Lynch, so far as the record disclosed, to C.J. Montgomery, and also the execution of a warranty deed from Worthy to C.J. Montgomery. It may be that the bill intended to aver that the deed was from W. H. Montgomery to C.J. Montgomery, instead of from Worthy, which may be surmised from the respondent's pleas, but a careful consideration of paragraph 6 of the bill discloses that

it avers that the deed mentioned is from Worthy to C.J. Montgomery, and not from W. H. Montgomery. Therefore the bill does not show a foreclosure of the Worthy and Lynch mortgage by a conveyance from the mortgagor to the sole owner of the mortgage; or, if the deed in question was from the mortgagor to C. J. Montgomery, then the bill, in effect, denies the fact that C.J. Montgomery was at the time the sole owner of the mortgage, as it negatives the assignment of Lynch's interest in said mortgage.

Worthy was at least a proper, if not necessary, party. Nor was the bill bad for not making Northern a party thereto. While it mentions the fact that he had a prior mortgage, it expressly avers that the same had been...