Macke v. Macke

• Decision Date: 17 May 1917
• Docket Number: 6 Div. 585
• Parties: MACKE et al. v. MACKE.
• Court: Alabama Supreme Court

76 So. 26

200 Ala. 260

MACKE et al. v. MACKE.

6 Div. 585

Supreme Court of Alabama

May 17, 1917

Appeal from Circuit Court, Birmingham County; H.A. Sharpe, Judge.

Bill by Mattie I. Macke against Frank C. Macke and others. From a decree overruling demurrer to the bill, respondents appeal. Affirmed.

Z.T Rudulph, of Birmingham, for appellants.

Beddow & Oberdorfer, of Birmingham, for appellee.

GARDNER J.

The bill here under review was filed in a double aspect. In the first aspect a cancellation of the mortgage is sought by the complainant, on the ground that it was given as security for her husband's debt, and therefore void under the statute. In the second aspect the bill acknowledges the validity of the mortgage, and shows the belief on the part of the complainant that the same had been paid by her husband, and his assurance to her of that fact; but also shows that, in the event it be ascertained that the note had not been paid complainant is ready and willing to pay whatever sum is found to be due thereon, and so offers in her bill. In this second aspect it also shows that the husband is in possession of the property, either as transferee of the mortgage or claiming under his brother who is alleged to claim as transferee thereof--an uncertainty and ignorance on the part of the complainant as to who is the owner of said mortgage--and complainant seeks an accounting as to said rents. In this latter aspect, therefore, the bill may be properly treated as one for redemption by the mortgagor, and an accounting.

While under a former decision of this court (Williams v. Cooper, 107 Ala. 246, 18 So. 170), a bill containing these two separate aspects in the alternative would have been subject to demurrer for multifariousness, we are clear to the view that under the provisions of section 3095, Code 1907, and the decisions of this court construing the same, such a bill is not now subject to this objection (Durr v. Hanover Bank, 170 Ala. 260, 53 So. 1012; Kant v. A.B. & A.R.R. Co., 189 Ala. 48, 66 So. 598; Moore v. Empire L. Co., 181 Ala. 344, 61 So. 940; Morris v. Mortgage Bond Co., 187 Ala. 262, 65 So. 810).

It is to be noted that the demurrer is addressed to the bill as a whole, and therefore does not test any particular aspect of the bill. If either aspect of the bill, therefore, has equity, the demurrer taking the point that there is no equity in the bill cannot be sustained. Jones v. Barker, 163 Ala. 632, 50 So. 890; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886.

What has been previously said concerning the second aspect of the bill discloses our conclusion that this feature has...