Hamilton v. Clancy

• Decision Date: 11 May 1916
• Docket Number: 1 Div. 936
• Citation: 72 So. 15,196 Ala. 194
• Parties: HAMILTON v. CLANCY.
• Court: Alabama Supreme Court

72 So. 15

196 Ala. 194

HAMILTON v. CLANCY.

1 Div. 936

Supreme Court of Alabama

May 11, 1916

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill to foreclose an equitable mortgage by John M. Clancy against Henry C. Hamilton and another. Decree for plaintiff, and defendant Hamilton appeals. Affirmed.

The bill in this case was originally filed by John M. Clancy against the appellant, Henry C. Hamilton, and one Alan Chester. The bill was subsequently amended by alleging that said Chester was a nonresident of the state, and by striking him as a party respondent. Respondent Hamilton then interposed a demurrer to the bill upon the ground that said Chester was a necessary party respondent. From the decree overruling this demurrer, he prosecutes this appeal.

The bill alleges that Alan Chester executed a note to Henry C Hamilton on August 7, 1914, due September 7, 1914, in the sum of $125, and that complainant is the holder of said note for value; the same having been transferred to him by Hamilton for the consideration of $125, the indorsement of the transfer being "without recourse on Henry C Hamilton." On the margin of the note was written the following: "Secured by Ames Automobile No 45--1062." It is further averred that after the transfer of said note to complainant the automobile referred to was sold by Alan Chester to Henry C. Hamilton; that it is now in the possession of, and is the property of, said Hamilton, subject, however, to the right, title, or interest of the complainant therein. The bill then seeks a foreclosure of said equitable mortgage by a sale of the automobile under decree of the court, the proceeds to be applied, first, to cost of the suit, and, second, to the payment of whatever sum may be ascertained to be due complainant, and the balance, if any, to be paid to Henry C. Hamilton.

Gordon & Edington, of Mobile, for appellant.

Jesse F. Hogan, of Mobile, for appellee.

GARDNER J.

The above statement of the case discloses that the complainant in the court below sought a foreclosure of an equitable mortgage on the personal property, to wit, the automobile, under a decree of the chancery court, so as to subject a sufficiency of the proceeds of the sale to the payment of the debt for the security of which it was given. The maker of the note who may also be referred to as the mortgagor, is shown to be a nonresident of the state. No decree is sought against him. The bill shows that he has, by an absolute sale of the property, parted with all his interest therein. He is therefore without any interest in the mortgaged property. Nor is relief sought against the respondent himself. The case is ruled by that of ...