Maulitz v. Jones

• Decision Date: 12 March 1931
• Docket Number: 6 Div. 779.
• Citation: 133 So. 701,222 Ala. 609
• Parties: MAULITZ v. JONES.
• Court: Alabama Supreme Court

133 So. 701

222 Ala. 609

MAULITZ v. JONES.

6 Div. 779.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied April 9, 1931.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to foreclose mortgage on real estate by Calvin Jones against N C. Maulitz, E. L. Fricks, A. C. Blankenship, the Bank of Ensley, and D. F. Green, as Superintendent of Banks liquidating the Bank of Ensley. From a decree overruling demurrer to the bill, respondent Maulitz appeals.

Affirmed.

Leader & Ullman and John D. Hill, all of Birmingham, for appellant.

Nesbit & Sadler, of Birmingham, for appellee.

THOMAS J.

The bill was for foreclosure of mortgage on real property, and the several and successive owners thereof were made parties respondent.

The joinder of necessary and proper parties in the case of successive conveyances of property to bring the whole title before the court has been repeatedly considered, and need not now be restated. 41 C.J. 737, § 789; 27 Cyc. 1351, 1352; Hodge v. Joy, 207 Ala. 198, 92 So. 171; People's Savings Bank v. Jordan, 200 Ala. 500 76 So. 442; National Surety Co. v. Coleman, 213 Ala 377, 104 So. 821.

It is further understood that on demurrer the pleading challenged is considered most strongly against the pleader. In the recent case of Whittle v. Clark et al., 219 Ala. 161, 121 So. 530, is the observation that, by the assumption of the mortgage debt, such person becomes primarily liable therefor, and as between the parties-the mortgagor and his grantee-the first obligor becomes liable as surety. Pomeroy on Eq. Jur. § 2106. And such is the relation to the mortgagee when accepted by such mortgagee as debtor. 27 Cyc. 1365 (e); 41 C.J. p. 709, § 744; People's Savings Bank v. Jordan, supra. To like effect are the cases of Eppes v. Thompson, 202 Ala. 145, 79 So. 611; Tennessee Bank v. Sewell, 214 Ala. 362, 107 So. 834; Interstate Land & I. Co. v. Logan, 196 Ala. 196, 72 So. 36.

It is further established that, where a purchaser, having assumed payment of a mortgage, and an extension of time and manner of payment is given by the mortgagee at the instance of such principal or assuming debtor, and the grantor as surety is not a party to such extension agreement, and has not consented thereto or ratified the same, such surety is discharged from liability. Interstate Land & I. Co. v. Logan, supra; 41 C.J. p. 719, § 761; p. 735, § 786; Jones on Mortgages, § 742; George v. Andrews, 60 Md. 26, 45 Am. Rep. 706; Paine v. Jones, 76 N.Y. 274; Stowell v. Goodenow, 31 Me. 540; Calvo v. Davies, 73 N.Y. 211, 29 Am. Rep. 130; Riggins v. Brown, 12 Ga. 276; Grangers' Bank of Calif. v. Shuey, 6 Cal. Unrep. Cas. 190, 55 P. 682; Miller v. Stewart, 9 Wheat. 701, 6 L.Ed. 189. We will advert to the rule as to installments.

The relation of the several parties may be thus stated: Appellee Jones (complainant) filed the original bill alleging that on the 26th day of February, 1926, he was the owner of said certain real estate, and on said date conveyed said property to N. C. Maulitz and Bettie E. Norris, and said Maulitz and Norris executed and delivered to the complainant five promissory notes, payable to the order of complainant, to secure the unpaid part of the purchase price, and, to secure said notes and unpaid part of the purchase price, said Maulitz and Norris executed and delivered to the complainant on said date a mortgage on said property; that on the 21st day of August, 1928, Bettie E. Norris conveyed to N. C. Maulitz an undivided one-half interest in the above-described property, and complainant agreed with N. C. Maulitz to divide the indebtedness of said Maulitz and Norris, evidencing the balance due of the purchase-money indebtedness, so that said N. C. Maulitz would owe one-half of said purchase-money indebtedness, and thereupon the said N. C. Maulitz became indebted to the complainant in the sum of $14,000, evidenced by three principal promissory notes dated August 26, 1928, with interest at the rate of 6 per cent. per annum, and payable semiannually, and evidenced by separate interest notes on dates indicated, and, to secure said notes and said unpaid part of the purchase price of said property, Maulitz and wife executed and delivered to the complainant on the 21st day of August, 1928, a mortgage, under the provisions of which in case of default the whole of said indebtedness at once became due and payable, and the mortgage subject to foreclosure. The averment as to this is in the following words:

"That Complainant agreed with the said N. C. Maulitz to divide the indebtedness of the said N. C. Maulitz and Bettie E. Norris evidencing the balance due of the purchase money indebtedness so that the said N. C. Maulitz would owe one half of said purchase money indebtedness and thereupon the said N. C. Maulitz became indebted to complainant in the sum of Fourteen Thousand ($14,000.00) Dollars, evidenced by three principal promissory notes, Numbers 1 and 2 being for Seventeen Hundred Fifty ($1750.00) Dollars each, and payable February 26, 1929, and February 26, 1930, and principal note Number 3 being for Ten Thousand Five

...