Hoffman v. Jordan

• Decision Date: 16 June 1955
• Docket Number: 4 Div. 794
• Citation: 263 Ala. 23,81 So.2d 546
• Parties: W. B. HOFFMAN v. Timmie JORDAN, pro aml et al.
• Court: Alabama Supreme Court

Page 546

81 So.2d 546

263 Ala. 23

W. B. HOFFMAN v. Timmie JORDAN, pro aml et al.

4 Div. 794.

Supreme Court of Alabama.

June 16, 1955.

E. C. Boswell, Geneva and C. L. Rowe, Elba, for appellant.

H. Grady Tiller, Montgomery, for appellees.

STAKELY, Justice.

On December 17, 1936, Eli M. Jordan and his wife H. P. Jordan executed a mortgage to W. B. Hoffman (appellant) to secure the sum of $82.50 on certain real estate in Geneva County, Alabama. Eli M. Jordan died intestate on February 19, 1939. Thereafter on April 28, 1941, a deed was executed by all of the heirs at law of Eli M. Jordan to W. B. Hoffman purporting to be in lieu of foreclosure of the aforesaid mortgage.

The bill in the case at bar was filed by the living children of Eli M. Jordan and the children of one deceased child, the widow having died, being all the next of kin and heirs at law of Eli M. Jordan, alleging in substance that the indebtedness secured by said mortgage had been paid and the mortgage should be cancelled and praying in the alternative that the complainants be allowed to exercise the equitable right of redemption. The bill further prayed for cancellation of the deed executed to W. B. Hoffman on April 28, 1941, on the ground that it was procured by fraud and on the ground that Timmie Jordan, one of the heirs at law of Eli M. Jordan, was a non compos mentis at the time of its execution. The bill further prayed that upon cancellation of the deed the court enter a decree ordering the property sold for division among the heirs of Eli P. Jordan, deceased, who are alleged to be joint owners or tenants in common of the property.

On October 7, 1952, the court entered a decree declaring the deed dated April 28, 1941, to be void and granting to the complainants the equitable right of redemption. The decree further ascertained and determined that the complainants were joint owners or tenants in common of the property embraced in the mortgage, fixed their respective interests in the property and ordered a sale thereof for division. The court further ordered the register to hold a reference to determine the amount, if any, which was due on the mortgage and to report back to the court.

On January 18, 1954, the court rendered a decree confirming the report of the register to which we shall later refer in greater detail. On February 24, 1954, W. B. Hoffman made a motion to amend the decree of October 7, 1952, by striking therefrom those certain provisions of the decree which declared the heirs at law of Eli M. Jordan to be the joint owners or tenants in common of the property described in the original bill and that the property could not be equitably partitioned without a sale and ordering a sale thereof and allowing the solicitor of record a reasonable attorney's fee for his services in effecting a sale of the land for division. The court on March 13, 1954, overruled and denied the motion. The appeal in this case was taken on April 7, 1954, from the decree of March 13, 1954 and from the decree of January 18, 1954.

There are 25 assignments of error made by the appellant on this appeal. The appellees have made a motion to strike assignments of error 1 to 15, inclusive, on the ground that they are predicated on the decree of October 7, 1952, and that assignments based on this decree are not available because no appeal was taken from the decree of October 7, 1952, within six months as provided by the statute. In this situation we cannot consider assignments of error based on the decree of October 7, 1952, because no appeal was taken from that decree and that decree is clearly a final decree since it ascertained and declared the rights of the parties and settled the equities and the fact that the cause remains in fieri in respect to other matters does not change this situation. Moorer v. Chastang, 247 Ala. 676, 26 So.2d 75; Carter v. Mitchell, 225 Ala. 287, 142 So. 514; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502.

But it is seriously insisted that a part of the decree of October 7, 1952, is void and that this is apparent on the face of the decree and the court has the power and duty on motion to vacate or expunge that portion of it at any time after its rendition. Arnold v. Garrison, 255 Ala. 11, 49 So.2d 787. It is further insisted that under the principles enunciated in Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116, where the court refused to vacate the void provisions of the decree, the remedy is by appeal. Therefore it is contended that we should consider as error the action of the court in overruling the motion to strike the provisions of the decree of October 7, 1952, to which reference has been made, and send the cause back to the trial court so that it can reconsider the decree of October 7, 1952. Ordinarily in answer to the contention here made we would regard it as sufficient to say that W. B. Hoffman is not in any position to question the validity of the decree ordering the land sold for division. The deed executed to him in lieu of foreclosure was declared null and void by the court with the result that the only interest, if any, which he might have in the property involved, would be as mortgagee under the mortgage made to him by Eli M. Jordan and his wife.

But we feel that we should pass on the merits of the contention here made so that no question may be left with reference to the validity of titles in this state which may be in a similar situation. The appellant has cited Dickinson v. Jordan, 210 Ala. 602, 98 So. 886, as authority for the position that a decree for sale of land for division is a nullity unless the decree is made in an adversary proceeding. It is argued that when the deed in lieu of foreclosure to W. B. Hoffman was set aside by the court, then those seeking a sale for division were all complainants and there was no respondent to question such proceedings who was a joint owner or tenant in common.

We do not consider that Dickinson v. Jordan, supra, is applicable here. In that case the widow and the minor, who were the sole heirs and next of kin of the decedent, filed a petition for sale of land for division and no one was made a respondent to the petition. In that case the court held that the mother should not be allowed to proceed with the suit as guardian or guardian ad litem for her infant daughter since her interests were antagonistic to that of the child.

In the case at bar W. B. Hoffman, Mrs. Della Hoffman, Lee Kilpatrick were all made respondents to the original bill. Mrs. Hoffman went out of the case when demurrer to the bill as to her was sustained and Lee Kilpatrick likewise went out of the case when it was ascertained in the final decree of October 7, 1952, that he had no right, title, claim or interest in or to the land involved. W. B. Hoffman continued to be the respondent in the case, fought the case to the last and claimed that he was the owner of the property in question.

The case at bar is similar to the case of Cook v. Whitehead, 255 Ala. 401, 51 So.2d 886. Briefly the facts in that case were that Joe Z. Whitehead was administrator of the estate of James M. Whitehead, deceased. Suit was instituted by the administrator and James M. Whitehead and Charles W. Whitehead, minors, by Joe Z. Whitehead as next friend. Jessie Whitehead was the sole party respondent. The bill in substance alleged that the administration of the estate of James M. Whitehead, deceased, was pending in the Probate Court of Covington County; that the only heirs and distributees of the estate were the two minor sons James and Charles, whose mother was dead, and who had no legal guardian; that the assets of the estate of James M. Whitehead, deceased, consisted of 400 acres of land situated in Covington County, which was owned jointly by the two minors in equal shares and that the land could not be equitably divided without a sale and that the respondent Jessie Whitehead claimed or was reputed to claim some right, title, interest or claim in the lands. She was called upon to appear and propound or otherwise assert her claim, title, incumbrance, if any, to the land in order that the title be cleared.

It was further prayed that the court declare that Jessie Whitehead had no interest in the lands and the lands be sold for division. The court rendered a decree finding that the complainants were entitled to the relief prayed and ordered the land sold for division. Later a bill of review was filed by James and Charles Whitehead, minors, by next friend. The respondents were Joe Z. Whitehead and others. This court said: 'From such of the records as are exhibited, it appears that the court had jurisdiction of the subject matter and acquired jurisdiction of the parties. The bill showed a cause of action sufficient to justify a decree ordering the lands sold for division.'

A court of equity has no original jurisdiction to sell lands for division and in Sandlin v. Anders, 210 Ala. 396, 98 So. 299, it is shown how successive statutes have enlarged the statutory limits of the jurisdiction of equity courts in such cases. An examination of §§ 186 and 189, Title 47, Code of 1940, shows no requirement in bills to sell for division that a joint owner or tenant in common be complainant and a joint owner or tenant in common be respondent. In equity it is not ordinarily a matter of substantive importance whether parties are joined as plaintiffs of defendants. The primary object is that all persons sufficiently interested be before the court so that relief may be properly adjusted among those entitled, their claims or interests fixed and all may be bound in respect thereto by a single decree. Pomeroy's Equity Jurisprudence (5th Ed.) Vol. i, p. 153. In 30 C.J.S., Equity, § 141, page 572 it is shown that in equity cases it is usually a matter of small moment whether a party appears as plaintiff or defendant so long as he is actually made a party before the court, because the court can mould its proceedings and decrees to suit the exigencies...