J.E. Butler & Co. v. A.G. Henry & Co.

• Decision Date: 15 April 1918
• Docket Number: 8 Div. 979
• Citation: 79 So. 630,202 Ala. 155
• Parties: J.E. BUTLER & CO. et al. v. A.G. HENRY & CO.
• Court: Alabama Supreme Court

79 So. 630

202 Ala. 155

J.E. BUTLER & CO. et al. v. A.G. HENRY & CO.

8 Div. 979

Supreme Court of Alabama

April 15, 1918

Rehearing Denied Nov. 4, 1918

Appeal from Chancery Court, Marshall County; James E. Horton, Jr. Chancellor.

Action by A.G. Henry & Co. against J.E. Butler & Co. and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Street & Bradford, of Guntersville, for appellants.

C.B Kennamer and John A. Lusk & Son, all of Guntersville, and Callahan & Harris, of Decatur, for appellees.

McCLELLAN J.

The complainants (appellees), Henry & Co., filed this bill against John H. West and his wife, Mollie C. West, Paul West the Bank of Guntersville, Geo. H. McFadden Bros. Agency, a corporation, and J.E. Butler & Co. The complainants (appellees) were mortgagees in a mortgage executed to them by John H. West on certain stock and crops grown by him in Marshall county. It appears to be accepted that the complainants' mortgage was subordinate to the mortgages given by John H. West to Grizzle & Co., assigned to the Bank of Guntersville, covering the crops described in the mortgage to the complainants. In the bill, filed by the junior mortgagees, the primary purpose is to effect redemption of the cotton and corn from the prior mortgage executed by John H. West to Grizzle & Co. The McFadden Agency and Butler & Co. bought, in separate lots, the property which the complainants insist was subject to the mortgages to Grizzle & Co. (Bank of Guntersville, assignee) and to their mortgage. The bill invoked the powers of the court to compel the McFadden Agency and Butler & Co. to deliver up the cotton and seed so bought or, if it has been disposed of, to bring them to an accounting therefor. The complainants prevailed in the court below; the decree awarding full relief against these purchasers of property held to have been subject to the complainants' and Grizzle's mortgages, after establishing the complainants' right to redeem from the Grizzle & Co. mortgages.

The only errors assigned are by the McFadden Agency and Butler & Co. They are the only parties complaining of the decree. The review of the decree is, hence, confined to questions in the solution of which these particular only appellants have an interest or concern.

The objections, taken by the demurrers, that the amended bill was rendered multifarious by the effort to secure relief against these respective appellants, who respectively bought the distinct parts of the mortgaged property, and that it improperly joined these appellants as defendants therein, are without merit. Where, as here, suit has a single object, it is not a fault that all parties who are made defendants are not interested or concerned in all the questions involved in the suit. Truss v. Miller, 116 Ala. 494, 505, 22 So. 863; Mitchell v. Cudd, 196 Ala. 162, 71 So. 660; Webb v. Butler, 192 Ala. 287, 295, et seq., 68 So. 369, Ann.Cas.1916D, 815; Forcheimer v. Foster, 192 Ala. 218, 68 So. 879; Hunter v. Briggs, 184 Ala. 327, 330, 63 So. 1004; Mathews v. Carroll, etc., 195 Ala. 501, 70 So. 143; Randle v. Boyd, 73 Ala. 282, 288.

The mortgage, the foreclosure of which is sought, affords the single subject-matter of the cause. The averred purchase of the properties by these appellants immediately connects them with the single object of the suit. It is hardly necessary to add that, since the bill is not multifarious, there was no misjoinder of these appellants as parties defendant thereto.

Other propositions advanced by the demurrers are concluded against the appellants by the decision of this court in Comer v. Lehman, 87 Ala. 362, 369, 6 So. 264, where, on the bill to foreclose the mortgage, it was held that the jurisdiction invoked was efficient to invite a money decree against parties who had taken and sold, before the bill was filed, property covered by the mortgage, thus concluding against the present appellants' contention that an adequate remedy at law existed to deny equity to the bill as against them. Paul West was not a necessary party to the cause.

The court did not err in overruling the appellants' demurrers to the amended bill.

The bill averred that the land, on which the crops in question were grown, belonged to John H. and Mollie C. West; whereas the undisputed evidence disclosed that in Mrs. West, alone was the title vested. Because of this variance reversible error is claimed. Since the complainants' rights were created, if at all, by their mortgage upon the crops, not upon the land, and since the bill's equity is...