Webb v. Sprott

• Decision Date: 25 November 1932
• Docket Number: 2 Div. 17.
• Citation: 144 So. 569,225 Ala. 600
• Parties: WEBB ET AL. v. SPROTT.
• Court: Alabama Supreme Court

144 So. 569

225 Ala. 600

WEBB ET AL. v. SPROTT.

2 Div. 17.

Supreme Court of Alabama

November 25, 1932

Appeal from Circuit Court, Perry County; Jno. Miller, Judge.

Bill for reformation and foreclosure of a mortgage by Luther B Sprott, as executor of the estate of J. M. Sprott, deceased against Ella B. Alexander, John H. Webb, and Mary Webb. From a decree overruling a demurrer to the bill, respondents appeal.

Reversed rendered, and remanded.

J. C. Locke and Clifton C. Johnston, both of Marion, for appellants.

Arthur W. Stewart, of Marion, for appellee.

KNIGHT J.

Bill by Luther B. Sprott, as executor of the last will and testament of J. M. Sprott, deceased, against John Webb and others for reformation and foreclosure of a mortgage, executed by Ella B. Alexander and husband to J. M. Sprott, deceased. This mortgage was executed on April 15, 1930, and was filed for record on the 24th day of same month and year. The mortgagee died on the 18th day of April, 1931, and the appellee was thereafter, and before the filing of the bill in this cause, duly appointed executor of his last will and testament. A copy of the letters testamentary are attached to the bill as amended, and, by reference thereto, are made a part of the bill. The bill does not aver in terms that the said J. M. Sprott died testate or intestate, and the fact that he died testate is only made to appear by reference to the letters testamentary issued to appellee by the probate court of Perry county, Ala. Of course, the bill erroneously styles the complainant as executor of the "estate of J. M. Sprott, deceased," his proper designation being executor of the last will and testament of said J. M. Sprott, deceased.

After the execution of the mortgage by the Alexanders to said Sprott, W. B. Alexander, the husband of said Ella B. Alexander, died. The lands conveyed by the mortgage to Sprott were the property of the wife. This mortgage was given to secure the payment of a loan of $3,000 made by Sprott, the mortgagee, to Mrs. Alexander. The principal of this indebtedness was evidenced by six promissory notes, and six interest notes were also executed. These notes, principal and interest, were executed by Mrs. Alexander and her husband, the first principal and interest notes matured on April 15, 1931, and one principal note, together with an interest note, matured on the 15th day of April in each year thereafter.

The mortgage conveyed to Sprott three hundred acres of land, all being in section 5, township 18, range 9, except eighty acres thereof which were described as lying in section 6, township 19, range 9. All located in Perry county.

After the execution and delivery of this mortgage, Mrs. Alexander, her husband being then dead, sold and conveyed the lands to John and Mary Webb, but in the conveyance to the Webbs the lands were described as set out in the mortgage to Sprott, except the eighty acres, above mentioned, were described as being in township 18, instead of in township 19. As a part of the consideration of the conveyance to the Webbs, the Webbs assumed and agreed to pay according to its terms a mortgage made by said Alexanders to said Sprott. For the balance of the purchase price of the lands, the Webbs made and delivered a mortgage to Mrs. Alexander on the lands conveyed by her to them.

Default was made in the payment of the principal note falling due to Sprott on April 15, 1931, and under the acceleration clause of the mortgage, Sprott, the mortgagee being dead, the appellee, as his executor, declared the entire debt due and payable at once, and filed this bill to reform the mortgage, so as to make it include and to convey the eighty acres described as the east half of southeast quarter of section 6, township 18, range 9, instead of the east half of southeast quarter of section 6, township 19, range 9, in Perry county, alleging that the said Ella B. Alexander and husband, W. B. Alexander, did by inadvertence or mistake in their said mortgage describe part of the lands as being in township 19, when all of said lands should have been described as being in township 18; and as reformed, to foreclose said mortgage. It is averred that the lands were the property of Mrs. Alexander, not of her husband, and that the complainant does not seek any deficiency judgment against the estate of W. B. Alexander, deceased. Neither the heirs of said W. B. Alexander nor his personal representative are made parties to the bill.

Numerous grounds of demurrer were assigned by the Webbs and by Mrs. Alexander to the bill as last amended. The court overruled the demurrers, and the present appeal is prosecuted from that decretal order.

It is first insisted that the will of J. M. Sprott, the deceased mortgagee, should have been pleaded or exhibited, and that it had been admitted to probate and record. The bill shows that the appellee is the executor of the last will and testament of said J. M. Sprott, deceased, and that it is filed by him in his representative capacity. Attached to and made a part of the amended bill, marked "Exhibit A-1," are the letters testamentary issued to the appellee. The bill, and its exhibits, constitute the complaint, and demurrers directed thereto will be so referred, and tested. The exhibits attached to the bill, being regarded as a part of the bill, aid and supplement the same. Grimsley v. First Ave. Coal & Lbr. Co., 217 Ala. 159, 115 So. 90; Hogan v. Scott, 186 Ala. 310, 65 So. 209; Clements v. Clements, 200 Ala. 529, 76 So. 855; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Piedmont Land Imp. Co. v. Piedmont Foundry & Mach. Co., 96 Ala. 389, 11 So. 332; Conoly v. Harrell, 182 Ala. 243, 62 So. 511; Minter v. Branch Bank at Mobile, 23 Ala. 762, 58 Am. Dec. 315. The bill as amended sufficiently shows that the appellee is the executor of the last will and testament of the said J. M. Sprott, notwithstanding the very loose averment that he was the executor of the estate of J. M. Sprott. There is, of course, no such representative as executor of the estate of a decedent. It was and is a misnomer, but the bill as amended, with the exhibit thereto, and made a part of the same, corrects this misnomer.

Was it necessary that the will should be pleaded or exhibited, as is insisted upon by the demurrants, and as pointed out by their demurrer? The probate court of this state being one of general jurisdiction in the grant of letters of administration, all intendments are indulged in favor of the validity of the appointment of administrators and executors. Unless the record discloses a want of jurisdiction, the presumption will be indulged that the court ascertained all the facts essential to the appointment, before making the appointment, of an administrator or executor. In such case the order granting letters cannot be collaterally assailed. Tubbs v. Barnard (Ala. Sup.) 143 So. 448; Breeding v. Breeding, 128 Ala. 412, 30 So. 881; Burke v. Mutch, 66 Ala. 568; Ikelheimer v. Chapman's Adm'rs, 32 Ala. 676; Barclift v. Treece, 77 Ala. 528; Gray's Adm'rs v. Cruise, 36 Ala. 559; Wolffe v. Eberlein, 74 Ala. 99, 49 Am. Rep. 809.

We are therefore of the opinion that it was unnecessary to plead the will or to make it an exhibit to the bill. The complainant as executor could file and maintain the bill in his representative capacity. There is, therefore, no merit in those grounds of demurrer which challenge the sufficiency of the bill for failing to plead the will or to make it an exhibit, or to allege, in terms, that the will had been proved.

It is also earnestly argued that the executor was without authority to declare the entire debt due and payable upon default being made in the payment of one of the principal notes. The mortgage expressly stipulated that if the mortgagors "fail to pay and discharge said debts and liabilities as the same accrue and mature, or to keep and perform any agreements and covenants herein contained, or to make any other default in the premises, the said party of the second part, his agent, attorney, heirs or assigns are hereby authorized and empowered to declare the entire debt and liabilities due and foreclose for the payment of the same." It is insisted that the authority to declare the entire debt due on failure to pay an installment is specifically given in the mortgage to J. M. Sprott, the mortgagee, his agent, attorney, heirs, or assigns, and that ...