Head v. Carroll
| Decision Date | 13 June 1935 |
| Docket Number | 8 Div. 651 |
| Citation | 163 So. 328,230 Ala. 688 |
| Parties | HEAD et al. v. CARROLL. |
| Court | Alabama Supreme Court |
Rehearing Denied Oct. 10, 1935
Appeal from Circuit Court, Marshall County; A.E. Hawkins, Judge.
Bill to foreclose a mortgage by John U. Carroll against O.J. Head and others. From a decree for complainant, respondents appeal.
Affirmed.
Wm. C Rayburn, of Guntersville, for appellant.
Claud D. Scruggs, of Guntersville, for appellee.
This is a suit in equity by appellee to foreclose a mortgage. From the final decree granting relief, respondents appeal, and raise two questions, one of law and one of fact.
They insist that their demurrer to the bill should have been sustained because it does not offer to do equity, and submit to the jurisdiction of the court. But it does not disclose that there is anything in particular which complainant should offer to do as a condition to the relief which he seeks. This is only necessary when it discloses that there is something on his part to be done which in equity ought to be done to entitle him to relief. Davis v. Anderson, 218 Ala 557, 119 So. 670; Sumners v. Jordan, 220 Ala. 402 125 So. 642; Shaddix v. National Surety Co., 221 Ala. 268, 128 So. 220; Holman v. Harper, 223 Ala 100, 134 So. 863; Gill Printing Co. v. Goodman, 224 Ala. 97, 139 So. 250. No such condition appears from the bill.
The only other question argued is one of fact. It is whether Maud E. Head executed the mortgage as surety for the debt of her husband, O.J. Head. She was dead at the time the bill was filed. The admissions in the pleadings and the testimony are that when the mortgage was executed she and her husband were the joint owners of approximately 43 acres of the land included, and that the husband owned the other tract of 44 acres. It also appears from the pleadings and evidence that the amount of the mortgage debt was on that day borrowed from the mortgagee. There was only one witness examined as to the transaction. He was the attorney who drew the mortgage witnessed its execution, and took the acknowledgments. The papers indicate the existence of a joint debt. The evidence does not show that it was not so in fact. The lender of the money made out his check payable to them both, and they both indorsed it and turned it over to him who had sold the 44 acres to the husband. That circumstance alone is not sufficient to show that she was not a joint borrower of...
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Sykes v. Sykes, 6 Div. 393
...... Head v. Carroll, 230 Ala. 688, 163 So. 328; Davis v. Anderson, 218 Ala. 557, 119 So. 670.' Young v. Dean, 253 Ala. 211, 215, 44 So.2d 12, 16. ......
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Martin Stamping & Stove Co. v. Manley
...shows that the complainant is not required to do anything in good conscience as a condition to the granting of relief. Head v. Carroll, 230 Ala. 688, 163 So. 328; Davis v. Anderson, 218 Ala. 557, 119 So. 670. Such is the bill in the instant case, where it is apparent on its face that under ......
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Smith v. Hart, 6 Div. 300
...to be rendered to respondent, Joe Wheeler Smith. It is not, therefore, subject to demurrer for not offering to do equity. Head v. Carroll, 230 Ala. 688, 163 So. 328; Davis v. Anderson, 218 Ala. 557, 119 So. It is true that a bill in equity may be subject to demurrer if it shows on its face ......
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Kimbrell v. State
...in good conscience as a condition to the granting of relief, the averment of an offer to do equity is not necessary. Head v. Carroll, 230 Ala. 688, 163 So. 328; Sykes v. Sykes, 262 Ala. 277, 78 So.2d 273. Complainant here seeks recovery of money alleged to have been paid to Gwin, without au......