Rosenau v. Powell

• Decision Date: 27 November 1913
• Parties: ROSENAU v. POWELL.
• Court: Alabama Supreme Court

63 So. 1020

184 Ala. 396

ROSENAU v. POWELL.

Supreme Court of Alabama

November 27, 1913

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Action by M.E. Powell against D.L. Rosenau. From a judgment for plaintiff, defendant appeals. Affirmed.

Jones &amp Persons, of Tuscaloosa, for appellant.

P.B Traweek, of Tuscaloosa, for appellee.

McCLELLAN J.

This is the second appeal in this cause. Rosenau v. Powell, 173 Ala. 126, 55 So. 789. The court continues satisfied with the conclusions there announced.

The bill was exhibited by Mrs. Powell against D.L. Rosenau William Riggs, and M.B. Thompson. The purpose and object of the bill as finally amended was to cancel a certain deed, executed by complainant and her husband, John C. Powell, to Rosenau, and, under this theory of decreed relief, to effect an accounting of and for property received by Rosenau, whose then relation to complainant's husband was that of mortgagee; to have ascertained the true amount of the mortgage debt; to charge Rosenau with the rents and profits of the land (80 acres) after the possession passed to him and before his sale thereof to Riggs, who subsequently mortgaged the land to Thompson; to ascertain the value of the lands at the time of sale to Riggs, and, if Riggs and Thompson were found to be innocent purchasers for value, to require Rosenau to account for the value so ascertained; and, after deducting the amount due on the mortgage debt, to effect redemption by complainant and cancellation of the mortgages described in the bill, and a personal money decree over, if a balance was found due. The court below concluded to these general results: The cancellation of the deed, as prayed; the adjudication that Riggs and Thompson were innocent purchasers for value and without notice of complainant's equities; the cancellation of the mortgages, as prayed; the rendition of a personal money decree against D.L. Rosenau for $1,987.25, as ascertained on the reference held by the register.

This cause was submitted November 26, 1912, and brief for appellant was delivered into the court with the transcript according to rule 10 of Supreme Court practice. Seven errors were assigned on the record. In the brief filed on the submission for appellant the entire insistence for error affecting the decree in the cause was, in substance, this: That the complainant, as the widow, not suing as the personal representative or executor of the estate of her deceased husband (the mortgagor), was not entitled to a money...