Haralson v. Whitcomb

• Decision Date: 31 May 1917
• Docket Number: 3 Div. 258
• Citation: 200 Ala. 165,75 So. 913
• Parties: HARALSON et al. v. WHITCOMB.
• Court: Alabama Supreme Court

75 So. 913

200 Ala. 165

HARALSON et al. v. WHITCOMB.

3 Div. 258

Supreme Court of Alabama

May 31, 1917

Appeal from Chancery Court, Conecuh County; O.S. Lewis, Chancellor.

Bill by John C. Whitcomb against Lida J. Haralson and others. From an order sustaining a demurrer to the named defendant's cross-bill, she appeals. Affirmed.

Sayre Gardner, and Thomas, JJ., dissenting.

Rushton Williams & Crenshaw, of Montgomery, and Page, McMillan &amp Brooks, of Evergreen, for appellant.

Lane &amp Lane, of Greenville, for appellee.

McCLELLAN J.

Fannie C. Whitcomb executed to Gideon J. Peagler a mortgage on lots in Evergreen to secure a loan to her of $2,500. It is averred in the original bill, which is filed by the only heir at law of Mrs. Whitcomb, now deceased, and who is in possession of the property, against Gideon J. Peagler and Lida J. Haralson, that after maturity of the debt this mortgage was given to secure it was fully paid, thereby operating, under the statute (Code, § 4899), to divest the title passing by the mortgage. It is further averred that, after full payment and discharge of this mortgage debt, the mortgagee, Peagler, assigned the instrument to Mrs. Lida J. Haralson, and that the assignee is proceeding to foreclose it under the power therein to that end. The prayer is that the foreclosure in progress be enjoined pending the hearing on the bill, that the mortgage be adjudged a cloud on complainant's title and canceled of record on the theory that it has been fully satisfied, and that its foreclosure be permanently restrained, or, if mistaken in the assertion of the full payment of the mortgage debt before its assignment, that the indebtedness thereby secured be ascertained under equity's practices, and that the original complainant be allowed to redeem, to which purpose the original complainant unreservedly submits himself to the jurisdiction of the court. The appellant answered, and constituted her pleading a cross-bill under the statute (Code,§ 3118), to which cross-bill she made the asserted assignor, Gideon J. Peagler, along with an institution claiming to hold a mortgage on the same property, a party defendant. It is denied in the cross-bill that the mortgage debt had been paid before the assignment to cross-complainant; and the foreclosure of the mortgage through decree of the court is prayed. But the cross-bill also presents the alternative that, if it is ascertained by the court that the mortgage debt had been paid before the assignment to cross-complainant, the cross-complainant, who is alleged to have paid Gideon J. Peagler $2,500 for the mortgage, be awarded a personal decree against him for the sum thus paid for the invalid assignment of the discharged mortgage. Peagler demurred to the cross-bill, asserting the entire impropriety of, much less the necessity for, making him a defendant to the cross-bill; that the cross-bill is without equity as to him; that for whatever right cross-complainant may have to recover money from him she has an adequate remedy at law. The chancellor sustained his demurrer on this account; and the appeal presents that single question for review.

The statutory cross-bill (Code, § 3118) may be employed to "obtain relief against a party complainant or defendant for any cause connected with, or growing out of the bill, by alleging in his [cross-complainant's] answer, and as a part thereof, the facts upon which such relief is prayed." Recourse to the statutory remedy afforded by the broadening in 1885 of the elder statute so far as to include codefendants in the class against whom inter sese a cross-complainant might seek relief subjects the cross-bill against a codefendant to the same rules which govern the filing of a cross-bill against the original complainant. Abels v. Ins. Co., 92 Ala. 382, 386, 9 So. 423; Faulk v. Hobbie, 178 Ala. 254, 259, 260, 59 So. 450, 452. In the latter decision it was said:

"Under the statute relief will be granted against a codefendant exactly as though the cross-bill were an original bill, even though the original complainant has no interest in the cross-suit, and even though he abandons the whole proceeding. The object of the statute is to avoid a multiplicity of suits, with the delay and expense which they inevitably entail on the parties." Faulk v. Hobbie, supra.

This statement of the commendable purpose of the statute was emphasized by the apt quotation in the Faulk Case of an even more affirmative pronouncement from the Bickley Case, 136 Ala. 548, 554, 34 So. 946. While the purpose of the statute has been thus broadly affirmed, it cannot be concluded from either the Abels, Bickley, or Faulk Cases that a...