Taylor v. Jones

• Decision Date: 12 January 1967
• Docket Number: 1 Div. 301
• Citation: 194 So.2d 80,280 Ala. 329
• Parties: Voncile G. TAYLOR et al. v. Claude M. JONES.
• Court: Alabama Supreme Court

Page 80

194 So.2d 80

280 Ala. 329

Voncile G. TAYLOR et al. v. Claude M. JONES.

1 Div. 301.

Supreme Court of Alabama.

Jan. 12, 1967.

Fred Blanton and Morel Montgomery, Birmingham, for appellants.

Adams, Gillmore & Adams, Grove Hill, for appellee.

LAWSON, Justice.

Voncile G. Taylor and her husband, Albert J. Taylor, have appealed from a final decree of the Circuit Court of Clarke County, in Equity.

They also seek to appeal from the decree denying their application for rehearing. But that decree is not appealable for the reason that it did not modify the final decree. Equity Rule 62, Code 1940, Title 7, Appendix; Mize v. Mize, 273 Ala. 369, 141 So.2d 200. Nor is such a decree subject to review on assignments of error on appeal from the final decree. Long v. O'Mary, 270 Ala. 99, 116 So.2d 563; Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422.

Walter Fox owned approximately fifty-six acres of land in Clarke County. On February 17, 1958, he and his wife, Rebecca, executed a mortgage to Jackson Bank & Trust Company, hereinafter referred to as the Bank, for $629 to secure an indebtedness of that amount, which indebtedness was evidenced by a promissory note signed by Walter and Rebecca. The debt so secured was set up on the books of the Bank as the debt of Walter Fox.

On October 13, 1959, Walter Fox executed a warranty deed to his wife, Rebecca, purporting to convey to her an undivided one-half interest in the fifty-six acre tract which had been mortgaged to the Bank. This deed contained no reference to the Bank's mortgage.

Walter Fox died testate on June 9, 1960. Under his will, which was duly probated, he devised to his wife, Rebecca, 'a home on my estate until her decease.' The rest, residue and remainder of his estate was devised to Voncile G. Taylor and her husband, Albert J. Taylor, who will be referred to sometimes hereinafter as the Taylors. Voncile is apparently the daughter of Walter Fox by a previous marriage.

On October 28, 1960, Rebecca Fox conveyed her undivided one-half interest in the fifty-six acres to Claude M. Jones by warranty deed, in which no reference was made to the Bank's mortgage.

On October 31, 1960, Jones paid to the Bank the sum of $529.50, which was the amount owed by Walter and Rebecca Fox at that time. Upon such payment being made, the Bank delivered the Fox note and mortgage to Jones. The Bank did not execute a written assignment of the Fox indebtedness or the Fox note and mortgage.

On June 27, 1961, an attorney in fact for the Bank cancelled the Fox mortgage on the mortgage records in the Probate Office of Clarke County. This was done on the authority of the Bank's president, who was unaware that the mortgage had been delivered to Jones.

In December, 1961, Voncile Taylor was informed that Jones had purchased the mortgage and efforts were made to get the Taylors to contribute their portion of the indebtedness, but they did not do so. Voncile Taylor at one time agreed to sell her interest in the fifty-six acres to Jones but she later refused to go through with the sale.

On June 29, 1963, Jones obtained from the Bank a written assignment of the Fox indebtedness to the Bank, the note evidencing the indebtedness, and the mortgage securing the indebtedness.

On July 19, 1963, there was recorded in the Probate Office of Clarke County an instrument executed by Jones on July 16, 1963, wherein he purported to formally release and discharge from the lien of said mortgage the said undivided one-half interest which he (Jones) purchased from Rebecca Fox under and by virtue of the deed dated October 28, 1960.

On July 16, 1963, Jones advertised the Fox mortgage for foreclosure on the undivided one-half interest which he did not already own, the interest which the Taylors inherited under the will of Walter Fox.

After the foreclosure proceeding was commenced, Jones learned that the Bank has cancelled the mortgage, hence on September 5, 1963, Jones instituted this proceeding by filing his bill in the Circuit Court of Clarke County, in Equity, against the Bank, the Taylors and Rebecca Fox.

Aside from the prayers for process and for taxation of costs, the bill prayed:

'1. That your Honor make and enter an order holding the aforesaid cancellation by the Jackson Bank & Trust Company of said mortgage recorded in Record Book 398, at Page 407, to be null and void and authorizing and directing the Register of this Court to make a notation on the record of said mortgage to the effect that said cancellation is null and void and that the same is expunged from the record of said mortgage.

'2. That your complainant be authorized to foreclose said mortgage in accordance with its terms as to the undivided one-half interest which Walter Fox owned at the time of his decease in the 56 acres described and conveyed by said mortgage (mortgaged property described).

'3. That your complainant be authorized and directed upon the foreclosure of said mortgage, pursuant to the terms of said mortgage, to execute a deed to the purchaser of the above described property, free from all right, title and claim of the parties respondent hereto, except such statutory rights of redemption as they may have.'

The respondent Rebecca Fox and the respondent Bank filed separate answers wherein all of the allegations of the bill were admitted.

The other respondents, the Taylors, interposed a demurrer to the bill, which was overruled. Thereupon the Taylors filed their answer, which they made a cross bill. Jones and the Bank were made cross-respondents.

The material allegations of the answer-cross bill are:

1. That there is and was no indebtedness as averred in the bill of complaint.

2. That Jones, the Bank and the Bank's attorney conspired to deprive the Taylors of their title to the subject property.

3. That no claim on account of the Fox indebtedness was filed with the Executrix, Voncile G. Taylor.

The Taylors in their cross bill pray for the following specific relief:

'* * * that a final decree and order will be made by this Court denying all relief to the complainant Claude M. Jones in each and every aspect concerning his prayer for relief but that cross complainants be decreed as owners of said undivided one/half interest in the realty set out and described in the original bill of complaint, that there is no indebtedness thereon but said realty is free from all encumbrance and that the said Claude M. Jones be required by the decree to deliver to cross complainants the original mortgage he claims to own and have in his possession together with the original note held by him or cross respondent bank and that the court further decree that the cancellation of said mortgage was a valid, true and correct cancellation and all indebtednesses against said realty have been paid. Cross complainants further pray that this court in its decree will order cross respondents to compensate cross complainants in a reasonable sum for the expense in obtaining solicitor to represent them in this inequitable and illegal charge and complaint against them and that all costs be taxes against cross respondents. * * * Cross Complainants offer to do Equity.'

Separate demurrers of the Bank and Jones to the cross bill were overruled. Jones answered the cross bill, as did the Bank, but the latter's answer was stricken on motion of the Taylors, the cross complainants. The Bank then filed another answer. The cause was then at issue as Rebecca Fox was not made a cross respondent.

Testimony was taken orally before the trial court on August 25, 1964. Thereafter, on December 2, 1964, the trial court rendered a decree on the merits wherein, after finding that the complainant was entitled to the relief prayed for, ordered, adjudged and decreed as follows:

'1. That the cancellation by the Jackson Bank & Trust Company of the Walter Fox mortgage recorded in Book 398 at Page 407 is null and void, and the Register of this Court is hereby directed to make a notation on the record of said mortgage to the effect that said cancellation is null and void and that the same is expunged from the records of said mortgage.

'2. That the complainant is authorized to foreclose said mortgage, in accordance with its terms, as to the undivided one-half interest which Walter Fox owned at the time of his decease in the fifty-six acres described and conveyed by said mortgage, and more fully and particularly described as follows, to-wit:

'3. That the complainant is authorized and directed, upon the foreclosure of said mortgage pursuant to the terms of said mortgage, to execute a deed to the purchaser of the above described property, free from all right, title and claim of the parties respondent hereto, except such statutory rights of redemption as they may have.

'4. That the relief prayed for by the respondents and cross-complainants, Voncile G. Taylor and Albert J. Taylor is, hereby denied. * * *'

The Taylors on December 22, 1964, filed their petition for rehearing, wherein they sought to have the court ascertain the amount due and owing on the mortgage. As we have shown above, the petition for rehearing was denied. The appeal followed.

The appellants, the Taylors, argue their assignment of error to the effect that the trial court erred in overruling the demurrer which they interposed to the bill of complaint.

We will treat only those grounds of the demurrer which are argued in appellants' brief. Cook v. Whitehead, 255 Ala. 401, 51 So.2d 886; Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509; Creel v. Yeager, 274 Ala. 304, 148 So.2d 635.

The first ground of demurrer argued is ground 3, which is to the effect that the complaint lacks equity. The only argument advanced in support of this ground is that the bill of complaint alleges that the indebtedness secured by the mortgage remains 'unpaid and undischarged,' it being contended that it should have been alleged that the mortgage is 'past due and unpaid.'

The Taylors' demurrer was addressed to 'the complaint heretofore filed in...