Webster v. Talley
| Decision Date | 21 October 1948 |
| Docket Number | 1 Div. 318. |
| Citation | 37 So.2d 190,251 Ala. 336 |
| Parties | WEBSTER v. TALLEY et al. |
| Court | Alabama Supreme Court |
Jesse F. Hogan and D. R. Coley, Jr., both of Mobile, for appellant.
Bart B. Chamberlain, Jr., and T. T. Shepard, both of Mobile, for appellees.
The case was here before on appeal from a decree on demurrer where this court held the bill to be good as one to set aside a fraudulent mortgage foreclosure where the mortgagee had allegedly misused the power of sale in the mortgage to acquire the property for himself. Talley v Webster, 222 Ala. 188, 131 So. 555.
Subsequent to the first appeal the original defendant, Talley, the mortgagee who purchased at the foreclosure sale, died leaving a will devising all his real estate to his wife for life with remainder over to his brothers and sisters, the appellees. The bill was filed in 1928. Talley died in 1938, and no revivor was undertaken against the appellees until 1946, in consequence of which the lower court, on their motion, they then being the only substituted defendants, set aside the order purporting to revive the action against them as improvidently entered and dismissed the bill because the revivor had not been effected within twelve months, as required by the rule. Equity Rule 35, Code 1940, Title 7, Appendix, p. 1080.
During the long pendency of the cause no pertinent decretal orders were entered until the decree dismissing the bill. We will observe, though, that on the death of the said Talley a motion was duly filed to revive in the name of his personal representative (the condition of the estate is not shown) and the first challenge to the ruling of the court in dismissing the bill for a nonrevivor is that the remaindermen, who are the present appellees, were not necessary parties to the suit and that a revivor against the executor was sufficient. In this we cannot agree.
All persons interested in a suit in equity, whose rights will be directly affected by the decree, must be made parties unless too numerous or beyond the reach of process. On the death of Talley these remaindermen were, under his will, vested with an interest in all of his lands, including the land in suit. They were therefore necessary parties to the litigation. Jacobs v. Murphy, 245 Ala. 260(5), 16 So.2d 859; Smith v. Murphy, 58 Ala. 630; Ramey v. Green, 18 Ala. 771(5); Wilkinson v. May, 69 Ala. 33; Turnipseed v. Blan, 226 Ala. 549, 148 So. 116(5); McCaleb v. Worcester, 224 Ala. 360, 140 So. 595; Equity Rules 30, 31, Code 1940, Title 7 Appendix.
A revivor of the subject action against the personal representative would not affect the rights of the remaindermen or their title, nor would it suspend the abatement of the cause as to them.
It was pointed out in Rhea v. Tucker, 56 Ala. 450, Mr. Justice Stone writing, that no title in lands can properly be decreed to or against the personal representative; that though under our statutes See also Burt v. Brandon, 230 Ala. 85, 159 So. 691.
In Ex parte Sayre, 69 Ala. 184, 186, it was declared that the right to revive a cause against those to whom the title to property descended (there the heirs) for the recovery of the possession of lands or against the personal representative for the recovery of mesne profits or rents, the right of revivor must be asserted within the prescriptive period (then eighteen months after the death of the original defendant) against them respectively, as the case may be, according to their interests, or it would be lost.
And in Hunt v. Acre, 28 Ala. 580, it was held that where the suit involves the title to real estate of an intestate former party, the heirs at law are proper parties to the bill of revivor and 'the complainant proceeds without them at his peril.' The same general principle is likewise stressed in Bowie v. Minter, 2 Ala. 406(5), to the effect that where a suit in equity abates by death, the proper means of restoring vitality to the cause is a revivor against the person who comes in in the same right as the original party. See also Frowner v. Johnson, 20 Ala. 477.
We think the Supreme Court of Nebraska gives an apt statement of the pertinent rule in Dougherty v. White, 112 Neb. 675, 200 N.W. 884, 887, 36 A.L.R. 425, 430, as follows:
Sustaining authority is also found in approved textbooks and digests. See Sims, Chancery Practice, p. 409, § 620; 1 R.C.L. 26, § 18; 1 C.J. 232, §§ 489, 491; 1 C.J.S., Abatement and Revival, § 172, page 223; 1 Am.Jur. 112,§§ 175, 176.
We hold, therefore, that the cause of action abated as to the appellees, because not revived against them within the proper time.
No error then can be laid to the trial court in dismissing the suit.
True, after the revivor in 1946 against the present defendants, they did file an answer to the bill, and appellant argues that by so doing they absolutely waived the right to interpose the pleading to abate the suit some six months later.
It is a general principle obtaining in equity, as at law, that matter in abatement must be presented as a preliminary question and will generally be regarded as waived by pleading to the merits, but the import of our decisions is that the trial court has a discretion to permit the later presentation of such matter and the appellate courts generally will not revise such a ruling. Ex parte Union Planters Nat. Bank & Trust Co., 249 Ala. 461, 463(1), 31 So.2d 596; Ex parte Dunlap, 209 Ala. 453(11), 456, 96 So. 441; Ex parte Anderson, 242 Ala. 31, 4 So.2d 420; Box v. Metropolitan Life Ins. Co., 232 Ala. 1, 168 So. 216; Id., 232 Ala. 321, 168 So. 217; Norton v. Hines, 206 Ala. 134, 89 So. 277; 2 Ala.Dig., Abatement and Revival, k81; Id., Appeal and Error, k956(1).
On such authorities as above noted, it cannot be affirmed that the trial court improperly exercised its...
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