Hutto v. Copeland, 4 Div. 892

• Citation: 92 So.2d 30,265 Ala. 482
• Decision Date: 17 January 1957
• Docket Number: 4 Div. 892
• Parties: Jack HUTTO v. W. V. COPELAND.
• Court: Alabama Supreme Court

Page 30

92 So.2d 30

265 Ala. 482

Jack HUTTO v. W. V. COPELAND.

4 Div. 892.

Supreme Court of Alabama.

Jan. 17, 1957.

Brown & Steagall, Ozark, for appellant.

Johnson & Randall, Oneonta, and Geo. S. Barnard, Ozark, for appellee.

LAWSON, Justice.

This is an appeal from an interlocutory decree of the circuit court of Dale County, in equity.

J. L. Weed on October 1, 1951, executed a deed wherein he conveyed to his wife, Ora L. Weed, approximately 210 acres of land situate in Dale County, which land we will refer to hereafter as the suit property. The deed recited a consideration of 'One Hundred Dollars and other good and valuable consideration to me in hand paid.' The deed contains this further provision: 'It is agreed and understood that as a consideration for the conveyance the grantee is to and does hereby assume that certain mortgage indebtedness outstanding against the above described lands in favor of the Farmers & Merchants Bank of Ariton, Alabama in the sum of $5,000.00.' The mortgage to the Farmers & Merchants Bank of Ariton, Alabama, was executed on December 9, 1950, and duly filed for record on December 11, 1950. We will sometimes hereafter refer to that mortgage simply as the Bank mortgage and to the mortgagee as the Bank.

On May 21, 1953, the Hartford Accident and Indemnity Company, a corporation, sometimes referred to hereafter as Hartford, filed its bill in the circuit court of Dale County, in equity, against J. L. and Ora L. Weed, for the purposes, among others, of having the court declare the deed of October 1, 1951, from J. L. Weed to Ora L. Weed to be void and of no effect and to order the sale of the suit property for the purpose of paying such indebtedness as the court finds to be due complainant by the respondent, J. L. Weed, the sale to be subject to the Bank mortgage. There is no reason to encumber this opinion with the averments of the bill upon which Hartford based its right to such relief.

On August 21, 1953, W. V. Copeland filed a petition for permission to intervene in the suit filed by Hartford against the Weeds. The trial court entered an order on September 16, 1953, granting permission to Copeland to intervene as prayed. This action of the court seems to have antedated any action on any pleading which either of the Weeds might have interposed to the Hartford suit.

Acting in accordance with the permission previously granted, Copeland on July 3, 1954, filed an instrument referred to by all of the parties and by the trial court as a cross bill against J. L. Weed, Ora L. Weed, Hartford, the Bank and against J. Douglas Brown and Henry B. Steagall, II, the attorneys who filed the original bill on behalf of Hartford.

At this point it is sufficient to say of the so-called cross bill that its purpose is to have the trial court decree: That J. L. Weed is justly indebted to Copeland; that Copeland has a lien on the suit property 'which is superior to the alleged liens, mortgage or claim of any respondent to this Cross Bill,' that the deed from J. L. Weed to Ora L. Weed 'is void and of no effect as a fraud on the rights of this Cross-Complainant and that said deed be set aside and held for naught'; that the suit property 'be sold by the Register of this Court for the purpose of satisfying Cross-Complainant's said debts or liens on said lands.'

J. Douglas Brown was made a party respondent to the cross bill on the theory that he claims some interest in or to the suit property by transfer or assignment from the Bank. Copeland averred, in substance, that when Brown took the assignment of the Bank mortgage from the Bank he knew that Copeland had a 'mortgage or lien' which was superior to 'the alleged mortgage or lien' of the Bank. We are not here concerned with the averments of the cross bill as to the respondent Steagall.

On August 14, 1954, the cross-respondents filed a joint demurrer addressed to the cross bill as a whole. Shortly thereafter the cross bill was amended, but we need not make reference here to the nature of the amendment. The demurrer of the cross-respondents was refiled to the cross bill as amended. On September 28, 1954, the demurrer to the cross bill as amended was overruled. No appeal being taken from that decree, the cross-respondents filed their answer. Sometime after the answer was filed Copeland, the cross-complainant, propounded interrogatories to the respondent J. Douglas Brown, the answers to which revealed among other things that Brown 'purchased' the Bank mortgage from the Bank for $3,145.60 and that he thereafter transferred or assigned that mortgage and the debt secured thereby to one Jack Hutto of Ariton, Alabama, for $6,145. The interrogatories did not request and the answers did not reveal the date of those transactions.

Thereafter on February 1, 1956, Copeland amended his cross bill as already amended by making Jack Hutto a party respondent and by adding to the averments of the amended cross bill sections numbered I, II, III and IV and by amending the prayer. On February 27, 1956, Hutto filed his demurrer to the 'amended cross-bill,' which demurrer was overruled by the trial court on June 13, 1956. From that decree Hutto has appealed to this court.

There are two assignments of error, both of which are to the effect that the trial court erred in overruling the demurrer of Hutto, the appellant here. These assignments are sufficient as against an attack that they are too general. Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509. It is not necessary to make a separate assignment of error as to each ground of demurrer relied upon. Brewer v. Brewer, 259 Ala. 149, 66 So.2d 450, and cases...