Scheerer v. Agee

• Decision Date: 17 December 1896
• Parties: SCHEERER ET AL. v. AGEE.
• Court: Alabama Supreme Court

21 So. 81

113 Ala. 383

SCHEERER ET AL. v. AGEE.

Supreme Court of Alabama

December 17, 1896

Appeal from city court of Montgomery; John G. Winter, Judge.

Bill by W. C. Agee against Charles Scheerer and others. From a decree in favor of complainant, defendants appeal. Reversed.

The bill in this case was filed by the appellee against the appellants. The averments of the bill, as originally filed and amended, and the purposes thereof, are set forth at length in the report of the case as found in 106 Ala. 139, 17 So. 610; and it is unnecessary to set them out at length on this appeal. After the remandment of the cause on the former appeal, the bill of complaint was amended, and also the prayer for relief. The facts averred, as finally amended, and the prayer for relief, are sufficiently stated in the opinion. Upon the bill as thus amended, the respondents demurred, and moved to dismiss the same upon the ground among others, that the amendment to the bill presented a new case. Upon the submission of the cause on the motions and demurrers, the court overruled the demurrers and motions. From this decree the respondents appeal, and assign the same as error.

Horace Stringfellow, for appellants.

Gordon Macdonald, for appellee.

McCLELLAN J.

The rights of complainant, Agee, were held, on the former appeal in this cause, to be those of an equitable owner pro tanto of the bonds, held by Scheerer, secured by a mortgage on the property of the Cloverdale Land & Development Company, and his bill was then adjudged to be without equity, for that it did not appear therefrom that the law day of said mortgage had passed when this suit for foreclosure thereof was commenced. The decree then presented for review was reversed and complainant was given time within which to amend his bill in the particular referred to, if the facts admitted of such amendment. Scheerer v. Agee, 106 Ala. 139, 153, 154 17 So. 610. The amendment then held to be necessary has not been made, but, on the contrary, it now appears on the abstract that the facts did not admit of it. The mortgage had not matured at time of bill filed. The necessity for the amendment in question is, however, sought to be avoided by another amendment, made since the former appeal, to the effect, substantially, that Scheerer has meantime taken a conveyance of certain lands in satisfaction of the debt as collateral to which he held said bonds, or, in other words has converted the bonds, of which complainant was equitable owner in part, into this land; the averment, more particularly, being that he surrendered said bonds to the mortgagor to be canceled in consideration of a conveyance of said land, which was a part of the property embraced in said mortgage, to him. The prayer of the bill was also amended by substituting for the whole of the original prayer, except that part of it which asked general relief, a prayer for the...