Tyson v. Decatur Land Co.

• Decision Date: 30 June 1899
• Citation: 26 So. 507,121 Ala. 414
• Parties: TYSON ET AL. v. DECATUR LAND CO.
• Court: Alabama Supreme Court

26 So. 507

121 Ala. 414

TYSON ET AL. v. DECATUR LAND CO.

Supreme Court of Alabama

June 30, 1899

Appeal from chancery court, Morgan county; William H. Simpson Chancellor.

Bill by the Decatur Land Company against John R. Tyson and others to foreclose a certain mortgage executed by defendants John R Tyson and J. N. Arrington. From a decree in favor of plaintiff, certain defendants appealed. Modified.

It was averred, in the bill as amended, that, subsequent to the execution of said mortgage, John R. Tyson and J. N. Arrington conveyed their interest in the lands included in said mortgage, which were purchased from the Decatur Land Improvement & Furnace Company, to Thomas W. Priest and Lucius D. Green, and that said Priest and Green afterwards conveyed said lot to Mary N. Morrison. John R. Tyson, J. N. Arrington Thomas W. Priest, Lucius D. Green, and Mary N. Morrison were made parties defendant to the bill. J. R. Tyson and J. N. Arrington filed pleas to the whole bill, averring facts in bar of the relief sought against them. These pleas were not demurred to, nor was their sufficiency attacked in any way by the complaint. There was a decree pro confesso rendered against the defendants Priest and Green. Mary N. Morrison filed an answer to said bill, but not under oath, denying the allegations thereof. On the final submission of the cause, on the pleadings and proof,the chancellor rendered a decree that the pleas of the defendants Tyson and Arrington were insufficient and without merit, and that the complainant was entitled to the decree of foreclosure as prayed for in his bill, and ordered accordingly. From this decree the present appeal is prosecuted. The appellants severed in the assignments of error, and Tyson and Arrington separately assign the rulings of the court adverse to them, and especially that part of the decree which held their several pleas insufficient and without merit. Mary N. Morrison assigned as error the rendition of the decree ordering the mortgage foreclosed.

O. Kyle, for appellants Tyson and Arrington. Speake & Russell, for appellant Mary E. Morrison.

Harris & Eyster and R. C. Brickell, for appellee.

McCLELLAN C.J.

This is a bill to foreclose a mortgage. It is filed by the Decatur Land Company, as assignee of the mortgagee, against the mortgagors and their grantees of the equity of redemption. Certain pleas were interposed by the respondents Tyson and Arrington, which went to the whole bill, and in bar of any relief upon it. These pleas were not set down for hearing as to their sufficiency, nor was their legal sufficiency in any other manner tested, or attempted to be tested. These pleas were proved. The cause was submitted for final decree on them, as well as upon the answers, and on the evidence in support of them. They and the proof of them were disregarded at the hearing on the ground that they were without merit that is, presented no material defense, and were therefore insufficient in law. There can be no doubt, we think, that this was an erroneous view. In chancery, as well as at law, if issue be taken upon an immaterial and insufficient plea, and it be established by the testimony, the respondent is entitled to the benefit of it as fully as if the matter set up in it had been to the last degree material, and a perfect defense against the bill. This doctrine is thus declared and illustrated by Mr. Daniell: "If the plaintiff reply to the plea, he thereby makes as full admission of its validity as if it had been allowed upon argument; so that, if the defendant at the hearing proves his plea to be true, the bill must be dismissed. Therefore, when a defendant, in a plea of purchase for valuable consideration, omitted to deny notice, and the plaintiff replied to it, and the defendant at the hearing proved the purchase for valuable consideration, it was held that the bill ought to be dismissed; for it was the plaintiff's own fault that he had not set the plea down for argument, when it would have been overruled. And it seems that in such case it will make no difference if the plaintiff should prove notice; for all that is required of a defendant in such case is to prove his plea, which he does by proving the purchase, and the payment of the consideration." 1 Daniell, Ch. Pl. & Prac. p. 695,-citing, among others, the cases of Danels v. Taggart's Adm'r, 1 Gill & J. 311; Meeker v. Marsh, 1 N. J. Eq. 198; Dows v. McMichael, 6 Paige, 139; Harris v. Ingledew, 3 P. Wms. 94. Judge Story lays down the same proposition: "If the plaintiff conceives a plea to be defective in point of form or of substance, he may take the judgment of the court upon its sufficiency. *** If a plea is allowed upon argument, or if the plaintiff, without...