Jenkins v. Jonas Schwab Co.

• Decision Date: 17 December 1903
• Citation: 35 So. 649,138 Ala. 664
• Parties: JENKINS ET AL. v. JONAS SCHWAB CO.
• Court: Alabama Supreme Court

35 So. 649

138 Ala. 664

JENKINS ET AL. v. JONAS SCHWAB CO.

Supreme Court of Alabama

December 17, 1903

Appeal from Chancery Court, Jefferson County; John C. Carmichael Chancellor.

Bill by Willis L. Jenkins and another against the Jonas Schwab Company, a corporation. Decree for defendant, and complainants appeal. Reversed.

The defendant filed its answer, claiming that it held a mortgage on the lands described in the bill of complaint to secure an indebtedness evidenced by promissory notes; that upon this mortgage indebtedness there was a balance due and unpaid. The defendant then prayed that its answer be taken as a cross-bill, and said mortgage be foreclosed. The complainants in the original bill made a motion to strike the cross-bill of the defendant from the file upon the grounds that this was a proceeding under the statute, and that said statute does not provide for the filing of a cross-bill. The complainants to the original bill also demurred to the cross-bill upon the following grounds: (1) That the defendant, in its answer and cross-bill, did not offer to do equity; (2) that said answer and cross-bill seek relief other and beyond statutory relief (3) that the defendant to the statutory bill cannot seek affirmative relief by a cross-bill. The motions to strike the cross-bill and the demurrer were each overruled. Thereupon the complainants in the original bill filed an answer to the cross-bill, in which they set up the fact that the mortgage held by the defendant and described in the cross-bill was invalid, because the lands conveyed therein constituted the homestead of the complainants in the original bill at the time of the execution of said mortgage; that the complainants were at that time married men, and that the wife of neither of them made a separate acknowledgment of the execution of the mortgage before an officer competent to take such acknowledgments, as required by the statute; that the officer before whom the wives of the complainants made their acknowledgments was at the time a stockholder and officer of the defendant company. The issue of fact formed by the cross-bill and the answer thereto was, as allowed under the provisions of the statute, tried by a jury, and a verdict was returned by the jury, and certified to the court establishing as true the facts contained in the answer and the cross-bill. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainants were the owners and in possession of the lands described in the bill, but their ownership was subject to the mortgage of the respondent, and that the respondent was entitled to the relief prayed for in its cross-bill. A reference was ordered that the register take and state an account of the amount due from complainants to the respondent upon the mortgage described in the respondent's cross-bill, etc.

James E. Webb, for appellants.

Kerr &amp Haley, for appellee.

SHARPE J.

This suit was begun by a bill filed under the statute (Code 1896 §§ 809-813), which, under given circumstances, authorizes the filing of a bill to compel the determination of claims to real estate and to quiet the title to the same. The defendant answered that upon the lot described in the bill it held a mortgage executed by complainants, together with certain notes given by them contemporaneously with the mortgage, and by a cross-bill it prayed for foreclosure of the mortgage. A motion to strike out the cross-bill and a demurrer to same were overruled, and complainants answered the cross-bill, setting up that at the time of the transaction in question they were married men, and the lot was their homestead; that execution of the mortgage was not acknowledged by the wife of either of them before...