Mathison v. Barnes, 4 Div. 309.

• Decision Date: 16 December 1943
• Docket Number: 4 Div. 309.
• Citation: 245 Ala. 289,16 So.2d 717
• Court: Alabama Supreme Court
• Parties: MATHISON et al. v. BARNES et al.

16 So.2d 717

245 Ala. 289

MATHISON et al. v. BARNES et al.

4 Div. 309.

Supreme Court of Alabama

December 16, 1943

Rehearing Denied March 2, 1944.

R. H. Jones and A. Whaley, of Andalusia, for appellants.

Murphy & Cook, of Andalusia, for appellees.

BOULDIN Justice.

The appeal is from a decree overruling demurrers to a bill in equity as amended.

AppelleesJ. E. Barnes and Dona Barnes, filed their original bill against appellant, Mary Spear Mathison, in two aspects:

1st.To cancel a mortgage on real estate made by complainants to respondent, and cancel a forclosure deed thereto, upon the ground that the mortgage was without consideration in that the indebtedness which it purported to secure was fully paid when the mortgage was given.On this aspect, the bill further sought an accounting for rents and for waste by cutting timber, and removal of a house from the land after foreclosure and entry into possession.

2nd.To enforce a statutory right of redemption in the event the mortgage debt was not fully paid.

Nonjoinder of partiesrespondent, raised by demurrer, is stressed on appeal.

The bill, in setting forth the contentions of complainants as to the state of the indebtedness secured by the mortgage disclosed a series of mortgages given by complainants to secure the same debt or line of indebtedness.Briefly rehearsed, the bill avers: That the initial mortgage was given in 1927 to T. J. Spear, the father of respondent, Mary Spear Mathison; that in 1930, a mortgage was given to J. O McCall, son-in-law of T. J. Spear; that the principal part of the indebtedness was due T. J. Spear but that the mortgage was taken in the name of J. O. McCall in order to defeat a judgment against T. J. Spear secured against him by Virginia-Carolina Chemical Company; that renewals were made to McCall in 1931 and 1932; that T. J. Spear died in December, 1932; that in 1933 the mortgage was again renewed to McCall; that in 1934 the mortgage was again renewed, but taken in the name of Isa O. Spear, widow of T. J. Spear, deceased; that this mortgage was renewed in 1935; that finally in 1939, at the request of Mrs. Spear and Mary Spear Mathison, the mortgage was renewed to the latter.This was the mortgage foreclosed under the power of sale in 1940, the mortgagee purchasing at her own sale, as authorized in the mortgage.The bill alleged the amount of indebtedness recited in each of the successive mortgages, but that such amounts were inserted without regard to the true amount due; that the mortgagors could not read nor write, depended on T. J. Spear to keep the accounts; that after his death the other parties claimed the books were lost, but a discovery of the books after the last mortgage was executed revealed that the mortgage indebtedness was overpaid at the time of his death; that no other or further indebtedness was secured by this final mortgage, etc.

Appellant takes the view that J. O. McCall, Mrs. T. J. Spear, and the administrator of the estate of T. J. Spear, deceased, are necessary parties to the bill.

The bill does not affirmatively show any of these have an interest in the subject matter of the suit to be affected by the decree therein.True, the bill does not show any assignment of the mortgage to McCall in such form as to pass the legal title vested in T. J. Spear by the original mortgage.But if the motive for taking the mortgage to McCall was that averred in the bill, it would be binding as between the parties; effectual, as between T. J. Spear and J. O. McCall, to assign the indebtedness to McCall.A personal representative of the estate of Spear would stand in his shoes, could not claim the secured debt as assets of the estate.So far as appears, the later mortgage to Mrs. Spear was with full concurrence of Mr. McCall, passing to her as between them the ownership of the secured indebtedness.The final mortgage is expressly averred to have been made by agreement between Mrs. Spear and the daughter, Mrs. Mathison.This mortgage recites an indebtedness of $800 to Mrs. Mathison, evidenced by notes payable to her.So far as appears, each of the several mortgages, on its face, showed an indebtedness to the mortgagee therein named.

Certainly the bill discloses the respondent, Mrs. Mathison, claims under a mortgage made to her to secure a debt owned by her; and further discloses her ownership was derived through the series of mortgages mentioned.The bill, conceding to Mrs. Mathison the ownership of the indebtedness, if any, secured by the final mortgage, and conceding a regular foreclosure under the power of sale, sufficiently discloses the full legal title in her under our statute defining the legal effect of foreclosure under a power of sale in a mortgage.Code, Title 47, § 164;Jordan v. Ogden,237 Ala. 626, 188 So. 235.

The bill does not...