Rountree v. Satterfield

• Decision Date: 15 May 1924
• Docket Number: 8 Div. 604.
• Citation: 100 So. 751,211 Ala. 464
• Parties: ROUNTREE ET AL. v. SATTERFIELD.
• Court: Alabama Supreme Court

100 So. 751

211 Ala. 464

ROUNTREE ET AL. v. SATTERFIELD.

8 Div. 604.

Supreme Court of Alabama

May 15, 1924

Rehearing Denied June 19, 1924.

Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.

Bill in equity by J. B. Satterfield against Columbus W. Kyle, Martha Kyle, J. H. Holt, Charles Rountree, and the Rountree Lumber Company, to foreclose a mortgage and to recover the value of timber cut from the mortgaged premises. From a decree overruling their demurrer to the bill, Charles Rountree and the Rountree Lumber Company appeal. Affirmed.

Tennis Tidwell, of Albany, for appellants.

Mallory & Mallory, of Selma, and G. O. Chenault and Eyster & Eyster all of Albany, for appellee.

THOMAS J.

The bill was for foreclosure of a mortgage on land.

The agreement and appearance of counsel bring all necessary parties before the court under General Acts 1911, p. 589 amending section 2884 of the Code of 1907. L. & N. R. R Co. v. Shikle, 206 Ala. 494, 90 So. 900; Sherrod v. McGruder, 209 Ala. 260, 96 So. 78; New Morgan County B. & L. Ass'n v. Plemmons, 210 Ala. 16, 97 So. 46; Smith v. Collier, 210 Ala. 23, 97 So. 101.

Was the bill as amended, excepting, as it does, defendants Charles Rountree and Rountree Lumber Company from the claim for attorneys' fees, free from the grounds of demurrer assigned by said Charles Rountree and Rountree Lumber Company on their appeal?

The bill was by a mortgagee or an assignee of the mortgagee for foreclosure and discovery and accounting for waste alleged to have been committed by the mortgagor with the other named defendants by cutting and selling timber; that is to say, the Kyles gave the mortgage to Boynton, who transferred to complainant, and after record of the mortgage the Kyles cut and sold the timber to Holt, Rountree, and the Rountree Lumber Company. The averments are:

"Complainant further alleges that a large quantity of timber that was given upon said lands, at the time of the execution of the mortgage, has been cut and removed therefrom, not for ordinary use, but that the same was sold by the mortgagors to respondents J. H. Holt, Charles Rountree, and Rountree Lumber Company, for the amount of several hundred dollars, *** and respondents Charles Rountree, Rountree Lumber Company, and J. H. Holt, after the record of said mortgage, and after the same became the property of complainant, obtained timbers and lumber cut from said land of the value of several hundred dollars, and converted the same to their own use; they, at the time, having actual, or constructive notice of the existence of said mortgage upon said land."

The prayer of the bill contains, among other usual averments and prayer for general relief, the specific prayer:

"*** That the court, by reference to the register, or other proper way, ascertain what timbers, if any, were cut from the mortgaged property, and were obtained by J. H. Holt, Charles Rountree, and Rountree Lumber Company, after the transfer of said mortgage to this complainant, and the value of the same that was received by each of said defendants, and that a judgment be rendered against each of said parties, as and for a tort, for the conversion of said timber and lumber, to the full amount of the value thereof received by each of said persons. *** Complainant further prays that said mortgage be foreclosed and the land therein conveyed be sold, for the payment of the balance due on said mortgage, to date, together with interest thereon, and that, as a part of said mortgage debt, a reasonable fee for complainant's solicitors be ascertained and decreed."

When the bill is taken most strongly against the pleader, it may be said to seek respective accountings against the three defendants for the several wastes committed and conversions of the timber from the mortgaged lands with notice of the mortgage, and to charge each respective defendant with his or its separate and respective liability as incident to the relief of foreclosure of the mortgage.

In the case of Hitt Lumber Co. v. Cullman Property Co., 189 Ala. 13, 66 So. 720, the bill was to enjoin trespass and for the recovery of damages for cutting timber from the lands of complainant; held that, in seeking injunction to prevent repeated trespasses in the cutting of timber and for damages for the timber already cut by defendant corporation, and by the partnership before its incorporation, and by its individual members, the bill is multifarious, and not cured by section 3095 of the Code. That opinion concluded with the admission that it is often impossible to declare any fixed or abstract rule that will determine in all cases as to whether or not a bill is multifarious. Webb v. Butler, 192 Ala. 287, 68 So. 369, Ann. Cas. 1916D, 815.

In Sims Chancery Practice, § 236, pp. 145, 146, the author says:

"Chief Justice Brickell's definition.-Few other definitions of multifariousness seem to have been given by the Supreme Court, until Chief Justice Brickell in 116 Ala." (Truss v. Miller, 116 Ala. 494, 505) "paraphrasing Story, said: 'It is said that multifariousness, as an objection to a bill, is not capable of accurate definition. It is described generally, as the joinder of distinct and independent matters, thereby confounding them; or the uniting in one bill of several matters, perfectly distinct and unconnected against one defendant; or the demand of several matters of a distinct and independent nature against several defendants in the same bill.' By comparison with the paragraph cited from Story's Equity Pleading" (section 271 et seq.) "it is apparent that the definition was intended to cover all three kinds of multifariousness.

"Since Chief Justice Brickell's classification, none seems to have been attempted. But each of the three kinds of multifariousness has been recognized by many of our Supreme Court decisions. So we may conclude that in general multifariousness in Alabama and multifariousness in England were the same prior to the enactment of the new Alabama Code of 1907."

See, also, Burford v. Steele, 80 Ala. 147.

The note to the foregoing section, collecting and stating the effect of our decisions, is:

"The first kind of multifariousness, that of combining more than one distinct cause of action in the bill, though between the same parties, was held a defect in the bill in the following cases: Colburn v. Broughton, 9 Ala. 351, Seals v. Pheiffer, 81 Ala. 518, Tillman v. Thomas, 87 Ala. 321, Banks v. Speers, 103 Ala. 436, Prickett v. Prickett, 147 Ala. 494, and was recognized by dictum often. The second kind of multifariousness, that of combining causes against different defendants not interested in common, was held a defect in the bill in the following cases: Waller v. Taylor, 42 Ala. 297, Hardin v. Swope, 47 Ala. 273, Seals v. Pheiffer, 77 Ala. 278, American Refrigerating, etc., Co. v. Linn, 93 Ala. 610, Harland v. Person, 93 Ala. 273, Page v. Bartlett, 101 Ala. 193, and was recognized in many others holding that given facts did not constitute multifariousness. The third kind of multifariousness, that of joining plaintiffs who had different causes of action against the same defendants, was recognized as a defect in the bill in the following cases: Bean v. Bean, 37 Ala. 17, Mobile Savings Bank v. Burke, 94 Ala. 125, Smith v. Smith, 102 Ala. 516, and has been repeatedly recognized in dicta."

The observation is made that, prior to the enactment of the Code of 1907, and section 3095 thereof, the general rule of multifariousness in this jurisdiction was the same as in England. Pertinent provisions of the statute are that a bill is not multifarious which seeks: (1) Alternative or inconsistent relief growing out of the same subject-matter or (2) founded on the same contract or transaction; or (3) relating to the same property between the same parties. Code 1907, § 3095. Kant v. A. B. & A. R. R. Co., 189 Ala. 48, 66 So. 598, a bill to annul and reform between same parties, held not multifarious; Manegold v. Beavan, 189 Ala. 241, 66 So. 448, to impeach a decree for fraud, multifarious in praying for relief on account of ward's execution of conveyances not within the guardianship bond, and the claim not being an asset of the ward's in the hand of defendant guardian; Wheat v. Wheat, 190 Ala. 461, 67 So. 417, for partition and accounting among cotenants, upheld; Webb v. Butler, 192 Ala. 287, 68 So. 369, bill by trustees of banking partnership and for settlement of the trust, held multifarious as to setting aside conveyances made by a member to his daughter before the formation of the partnership. Ann. Cas. 1916D, 815. In Mathews v. Carroll Merc. Co., 195 Ala. 501, 70 So. 143, bill held not multifarious for seeking cancellation of a single mortgage on lands severally owned; Robinson v. Bice & Sons, 206 Ala. 546, 90 So. 307, bill for specific performance of contract to convey lands and for accounting under a contract for the conversion of timber on lands into lumber, held not rendered multifarious, because prayed that amount due on lumber contract be ascertained and paid complainant, "and because the lumber contract in its original memorandum form purported to stipulate for the advantage of one of the complainants only," the averment being that it was for the benefit of the "complainants"; Merchants' Bank of Mobile v. Zadek, 207 Ala. 84, 91 So. 815, bill for accounting by creditor against trustees of a corporation growing out of composition settlement in bankruptcy, and to declare the notes of the company in custody of trustees paid, etc., held not multifarious; Marsh v. Elba Bank & Trust Co., 207 Ala. 553, 93 So. 604, bill by heirs of deceased mortgagor to enforce equity of redemption on payment of mortgage, to avoid sale under power for fraud against mortgagees and the several parties alleged to...