Metcalf v. Clemmons-Powers & Co.

• Decision Date: 24 May 1917
• Docket Number: 4 Div. 696
• Citation: 200 Ala. 243,76 So. 9
• Parties: METCALF v. CLEMMONS-POWERS & CO. et al.
• Court: Alabama Supreme Court

76 So. 9

200 Ala. 243

METCALF v. CLEMMONS-POWERS & CO. et al.

4 Div. 696

Supreme Court of Alabama

May 24, 1917

Appeal from Chancery Court, Geneva County; O.S. Lewis, Chancellor.

Suit by P.M. Metcalf against Clemmons-Powers & Co. and others. From a decree denying relief, complainant appeals. Affirmed.

W.O Mulky, of Geneva, for appellant.

C.D Carmichael, of Geneva, and W.R. Chapman, of Dothan, for appellees.

McCLELLAN J.

On March 4, 1907, J.W. Clemmons executed to appellees a mortgage to secure an indebtedness of $750 on his crops to be grown in Geneva county in the year 1908. This mortgage was recorded on March 23, 1907. On November 27, 1907, J.W. Clemmons executed another mortgage to appellant for $2,000, covering the crops to be grown by him in Geneva county for the year 1908. From the crop (1908) so grown by this mortgagor the appellant bought from the mortgagor 16 bales of cotton, and applied the proceeds to Clemmons' indebtedness to appellant. The appellees brought their action for damages against the appellant for the thus wrought destruction of the lien resulting from their mortgage of date March 4, 1907. This court reversed the judgment rendered in favor of defendant in that action; the conclusion being that the plaintiffs were due the general affirmative charge. Clemmons v. Metcalf, 171 Ala. 101, 54 So. 208.

Whatever rights the appellant acquired through his subsequent mortgage from J.W. Clemmons were necessarily subordinate to the rights of appellees acquired by them through the previously executed and recorded mortgage by J.W. Clemmons; the registration thereof affording constructive notice to appellant of its existence at the time he took the mortgage of date November 27, 1907. Haislip v. Brannon, 73 So. 464; Mayer v. Taylor, 69 Ala. 403, 44 Am.Rep. 522; Clemmons v. Metcalf, 171 Ala. 101, 103, 104, 54 So. 208. After reversal of the judgment in the law court this bill was filed by Metcalf; and, in accordance with its prayer, the further prosecution of the action at law was enjoined. The chancellor denied all relief under the bill. In one of its features reformation of the mortgage to appellees, of date March 4, 1907, is sought on the ground that the inclusion therein of the crops to be grown by J.W. Clemmons during the year 1908 was not contemplated or intended by the parties thereto. It is very clear from the evidence that this feature of the bill was not sustained in the proof. Indeed, the contrary is the only conclusion reasonably possible from the evidence.

Another feature of the bill is predicated of an asserted estoppel against appellees to maintain any claim or right under their previously executed mortgage because they, with knowledge that appellant had taken his subsequent mortgage from J.W. Clemmons and was furnishing supplies to J.W. Clemmons to make his 1908 crop, did not warn or advise appellant that they had and relied on an antecedently executed and recorded mortgage on J.W. Clemmons' crop for the year 1908, and intended to look to it as a means of satisfying J.W. Clemmons' indebtedness, thereby secured, to the appellees. On the appeal from the judgment at law (171 Ala. 101, 54 So. 208) the court held that no waiver or estoppel was shown. The registration of the appellees' mortgage bore constructive notice to appellant of the existence of a right superior to any appellant might acquire through a subsequent mortgage by Clemmons to appellant. There was no obligation on appellees to notify the appellant of the fact notice of which the operation of the registration laws imputed to him. It is not proven that the appellees waived, surrendered, in any way, their right under the mortgage or that they misled appellant to his prejudice in the premises. Clemmons v. Metcalf, 171 Ala. 101, 104, 105, 54 So. 208. His predicament must be attributed, under the effect of the evidence, to his own want of care for his own interest, as in the ordinary case where a second mortgagee parts with value on its faith when the registration of a superior mortgage operated to impute to him constructive notice of the existence thereof.

Neither of the two features of the bill, to which reference has been made, were sustained. Hence error in the decree cannot be found on that account. The chief reliance for a right to equitable relief is involved in an appeal to the powers of a court of equity to give discovery, indispensable to the protection or assertion of complainants' rights in the premises and upon a jurisdiction thus invoked to proceed to a complete adjudication and adjustment of the issues and rights of the parties. Sims, Ch.Prac. (Ala.) § 668. In cases where the object sought by the bill is discovery and relief--even though the only relief desired is the inhibition of a further prosecution of an action at law--the complainant's obligation is to aver, and to sustain the allegation, not only the materiality of the matter of which he would have discovery, but also that it is indispensable to the establishment of his cause or defense, and that he is unable otherwise to make his proof. Shackelford v. Bankhead, 72 Ala. 476; Wolfe v. Underwood, 96 Ala. 329, 332, 11 So. 344, and other decisions noted under section 668 of Mr. Sims' work. The matter of the discovery desired is the state of the account--the true amount of the indebtedness between J.W. Clemmons and the appellees, secured by their mortgage of date March 4, 1907, on the crop for the year 1908; the complainant's contention being that the value or amount of that indebtedness would, in any event, fix the limit of appellant's liability for the destruction of the lien of the appellees on the 16 bales of cotton bought by him in the fall of 1908. It is true this court has held that the enactment of the statutory provisions for propounding interrogatories by one party to another (Code, § 4049 et seq.) in civil actions and equitable causes did not abrogate the jurisdiction of the courts of equity to enforce discovery (Handley v. Heflin, 84 Ala. 600, 4 So. 725; Shackelford v. Bankhead, 72 Ala. 476). See Pomeroy's Eq. (3d Ed.) §§ 193-195. This court is committed to this view of the merely cumulative effect of our statutory system for the examination of one party by another through interrogatories propounded in accordance with the requirements of the system. Code, § 4049 et seq. The requisites to the construction of an efficient bill of discovery and relief include, as stated, the averment that the complainant cannot prove the facts of which he would have discovery otherwise than through the...