Hambrick v. Russell

• Decision Date: 09 January 1889
• Citation: 5 So. 298,86 Ala. 199
• Parties: HAMBRICK ET AL. v. RUSSELL ET AL.
• Court: Alabama Supreme Court

5 So. 298

86 Ala. 199

HAMBRICK ET AL. v. RUSSELL ET AL.

Supreme Court of Alabama

January 9, 1889

Appeal from chancery court, Madison county; S. K. MCSPADDEN Chancellor.

Bill filed by Martha T. Russell and Mary A. Walker against Bradford Hambrick and his wife, Mary Hambrick, and Joseph M Hambrick, to foreclose a mortgage on certain lands made by Bradford Hambrick and wife to one George M. Harris, who was described in the mortgage as "George M. Harris, agent of Mrs. Missouri McCalley." The mortgage was given to secure an indebtedness of $1,650 evidenced by a bond payable to Harris as such agent. Harris was not made a party to the suit. The mortgage was executed February 7, 1881, and was duly filed for record in the probate office of Madison county. Mrs. McCalley died in August, 1881, and on March 4 1882, the complainant Martha T. Russell was duly appointed her administratrix with the will annexed letters being issued to her April 18, 1882. Thereafter Harris made with her, as administratrix, a settlement of his agency, delivering the bond and mortgage in suit as assets of the estate. On final settlement and distribution of the estate, the bond and mortgage were, by decree, allotted to said Martha T. Russell the sole legatee and devisee under the will. Before filing this bill the bond and mortgage had been pledged by her to her co-complainant, Mary A. Walker.

The bill avers that the mortgagor acquired title to the lands under a conveyance from one Alfred Hambrick, bearing date April 29, 1877; that the appellant Joseph M. Hambrick "claimed some right, title, or interest in said lands, under what purports to be a deed of conveyance of all or a part thereof, executed to him by said Alfred Hambrick on September 9, 1865;" that the said deed from Alfred to Joseph M. Hambrick was never filed in the probate office for record until September 24, 1884; that said Alfred Hambrick remained in possession of said lands as owner until April 29, 1877, when he sold and conveyed them to the mortgagor; that the mortgagor and mortgagee were severally bona fide purchasers of the lands in controversy, without notice of the alleged conveyance to Joseph M. Hambrick.

The principal controversy in the court below was between the complainants and appellant Joseph M. Hambrick, and was directed entirely to the validity of the alleged conveyance to Joseph M. Hambrick from Alfred Hambrick of September 9, 1865.

The chancellor rendered a decree foreclosing the mortgage, ordering the sale of all the lands described in the bill, and requiring the register to put the purchaser in possession. The respondents appeal.

R. C. Brickell, Humes, Walker, Sheffey & Gorden, and D. D. Shelby, for appellants.

Cabaniss & Ward, for appellees.

SOMERVILLE J

The decree, which is for the foreclosure of a mortgage, must be reversed for failure to make the mortgagee Harris a party to the foreclosure suit, he being the trustee in the mortgage, and, as such, the holder of the legal title. In such cases the trustee in whom the legal title is vested is an indispensable party, without whose presence the court will not proceed to a decree, and the objection is available at any time and in any form. Comer v. Bray, 83 Ala. 217, 3 South. Rep. 554; Prout v. Hoge, 57 Ala. 28; Lawson v. Warehouse Co., 73 Ala. 290.

We might reverse the decree in this case, and...