Jones v. Matkin

• Decision Date: 14 December 1897
• Citation: 118 Ala. 341,24 So. 242
• Parties: JONES v. MATKIN ET AL. [1]
• Court: Alabama Supreme Court

24 So. 242

118 Ala. 341

JONES v. MATKIN ET AL. ^[1]

Supreme Court of Alabama

December 14, 1897

Appeal from chancery court, Madison county.

Bill by Ada S. Jones against William B. Matkin and others. Demurrers to the bill were sustained, and complainant appealed. Reversed.

Coleman and Brickell, JJ., dissenting.

The facts as shown by the averments of the bill were as follows:

Mrs Margaret A. Matkin, who was the owner of the land in question, on the 29th of February, 1888, for the purpose of securing a note that day given by her to Isham G. Fennell for borrowed money, executed to him a mortgage on said lands with power of sale therein, on default in the payment of the note, after giving the notice prescribed. After this, she desired to divide her lands between her three children, the complainant, William B., and Percy D. Matkin. The complainant and said William B., by an agreement between themselves and the said Percy D., purchased the interest of the latter in said lands, or agreed to pay him $800 for his share in them in lieu of a conveyance by his mother to him, of a share in the lands, and for them to be the sole grantees of said lands from their mother. Mrs. Matkin accordingly conveyed one-half of said lands to complainant and the other half to her brother, William B., by separate deeds, for the considerations expressed in the deeds, 250 acres to each, the deed to complainant bearing date the 5th of September, 1890. The two deeds to said William B. were executed to different portions of the land, the one on the 9th of March, and the other on the 9th of August, 1890, and they each took possession of their respective shares, and continued in possession thereof as alleged, until the year 1891 or 1892.

In the year 1890 or 1891, said Isham G. Fennell died, and the probate court appointed Henry McDonald as his administrator. As is alleged in the bill, "on the 24th of April, 1893 the said Henry McDonald, as such administrator, under and by virtue of the power of sale in said mortgage, foreclosed the said mortgage and sold said real estate, and at such sale he became the purchaser himself as the administrator of said Fennell, for the sum of $2,383.50. For the purpose of putting the legal title in himself, as sole administrator, he executed a conveyance to his brother, Archie McDonald conveying the said real estate to said Archie under the power conferred by said mortgage. *** Soon after the date of said sale, Henry McDonald, as administrator of said Isham G. Fennell, took possession of said real estate, and held the same by his tenants and collected the rents upon the same until on or about the 24th October, 1894."

It is further averred in the bill, that the complainant made frequent efforts to get her brother, William B. Matkin, to join her in redeeming said real estate, informing him of her willingness to pay off and discharge her portion of said mortgage debt, according to the terms of their mother's respective conveyances to them; but he declined to confer with her on the subject, and declined to permit her to joint in such redemption; that he conspired with his wife, Elizabeth, to deprive complainant of all interest in said real estate, and to that end caused said Henry McDonald, as such administrator, to execute to his, William B.'s, said wife, a conveyance to all of said real estate, including complainant's part; that this conveyance was in consideration of $2,250, which was paid to said Henry McDonald, as administrator, to redeem said real estate from said mortgage sale, and that this sum was the amount remaining due on said mortgage, after crediting it with rents received by said administrator; that William B. Matkin obtained the money from McAnnelly & Bro. with which to redeem said lands, and his wife and he executed to them a mortgage on the entire tract of 500 acres, to secure the sum so loaned for this purpose, for which they gave their notes, payable in one, two, three and four years from date, bearing interest from date-said mortgage having been executed on the 10th November, 1894; that said William B. Matkin concealed from complainant, that he was negotiating to borrow said money for the purpose of redeeming said lands; that after the transaction by which the title to said lands was placed in Elizabeth G. Matkin, came to the knowledge of complainant, she offered to pay off and discharge the part of the mortgage debt, which in equity rests on the real estate conveyed by her mother to her, but the said Elizabeth and William B. Matkin refused to permit her to pay off and discharge the same; that complainant's husband, as her agent, offered to J. W. McAnnelly & Bro., to secure by proper mortgage on the part of the land conveyed to her by her mother, the part of the mortgage debt that is charged thereon, but said McAnnelly & Bro. refused to permit any division of said debt and its security; that complainant offered also to pay off and discharge the entire mortgage and afterwards to hold the lands so conveyed to William Blount Matkin by his mother, liable only for that part of the mortgage debt which was charged on it by said conveyance, but the said William B. Matkin declined to allow her to redeem said property or any part of it, or to have any interest in his redemption of it. Complainant alleges, that she is entitled in equity to have it ascertained what part of the said mortgage debt to McAnnelly & Bro. is a just and proper charge upon the said real estate conveyed by her mother to William B. Matkin, and that in equity each parcel thereof is first bound by said mortgage for the part thereof which is a first charge on it, and that said McAnnelly & Bro. should be required in foreclosing said mortgage to sell said real estate in separate parcels, as conveyed by their mother to complainant and the said William B. Matkin; that complainant should be permitted to pay off and discharge that part of said debt which is a charge on her part of the real estate; and that said McAnnelly & Bro. should not be permitted to resort to her part of the said real estate, to pay the remainder of said mortgage debt, unless the land so conveyed to said William B. Matkin proves insufficient to pay said balance.

Complainant submits her rights to the court to do equity and offers to pay off any part of said debt, or to secure any part thereof, and to do whatever may be required by the court.

The prayer of the bill, after asking that process of subp na be issued to the several defendants, was as follows: "The complainant further prays that the court will ascertain by its decree what part of the said mortgage debt is a proper charge on the real estate conveyed to her by her mother, and that she be permitted to pay off such indebtedness, or to provide for its payment when it becomes due and as it becomes due, and that the defendants J. H. McAnnelly & Bro. be restrained and enjoined from foreclosing their mortgage upon that part of the real estate so conveyed to her by her mother, unless they have first enforced the same upon the property conveyed to Wm. Blount Matkin and that complainant's property be only held liable for a deficiency, if any.

"The complainant further prays that the defendant Wm. Blount Matkin be enjoined from cutting the timber from said real estate conveyed to her by her mother, and from committing waste thereon.

"The complainant further prays that a receiver may be appointed to collect the rents, incomes, and profits from the said real estate so conveyed to her, and that the said rents, incomes and profits may be applied to the payment of that part of the mortgage debt which the court in equity may determine is a proper charge upon this real estate.

"The complainant further prays for all other and further relief to which she is entitled on the facts as herein stated."

The defendants separately and severally moved to dismiss the bill for the want of equity, and also separately and severally demurred to the bill upon the following grounds: "(1) Said bill shows upon its face that whatever right or interest the complainant ever had in or to the land mentioned in the bill was subject and subordinate to the mortgage of Margaret A. Matkin to Isham G. Fennell, a copy whereof is made Exhibit B to the bill, and the bill shows that said mortgage has been foreclosed, and does not show that the land conveyed thereby has been redeemed under the statute in such case made and provided.

"(2) Said bill shows that the land mentioned therein...