Whittle v. Clark

• Decision Date: 04 April 1929
• Docket Number: 6 Div. 231.
• Parties: WHITTLE v. CLARK ET AL.
• Court: Alabama Supreme Court

121 So. 530

219 Ala. 161

WHITTLE v. CLARK ET AL.

6 Div. 231.

Supreme Court of Alabama

April 4, 1929

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Bill in equity by F. L. Clark, A. L. Clark, C.J. Donald, and Ouida S Donald against L. L. Whittle, to compel foreclosure of a mortgage, etc. From a decree overruling a demurrer to the bill, respondent appeals. Reversed and remanded.

Sanders & Sanders, of Ensley, and Goodwyn & Ross, of Bessemer, for appellant.

G. P Benton, of Fairfield, for appellees.

BROWN J.

The relief sought by the appellees is to have the court, through a reference to the register, ascertain the value of the property covered by a mortgage executed by complainants to Fergus W. McCarthy, as executor of the estate of Hannah Bush deceased, to secure certain notes executed by the complainants evidencing an indebtedness of $1,500, said mortgage now being the property of the defendant, to foreclose said mortgage, and apply the proceeds of such foreclosure to the satisfaction of the mortgage indebtedness and attorneys' fees to the complainants' attorneys and the costs incurred in this suit, and the surplus, if any, to a junior mortgage held by the defendant, and discharge the complainants from the liability on said notes, to cancel a deed of foreclosure executed under the power of foreclosure of the junior mortgage, and for general relief.

The facts are so illy pleaded that we have experienced some difficulty in grasping the theory of the bill. To state the case in its most favorable light to the complainants, it appears from the averments and intendments, not permissible to be indulged on demurrer, that the complainants, while owners of the property, executed the mortgage to McCarthy as executor, and subsequently sold the property to Warren, who assumed the payment of the indebtedness represented by the McCarthy mortgage, as a part of the consideration of the conveyance to him. The property was several times subsequently sold, and in each instance a junior mortgage given which recited that such junior mortgage was taken subject to the first mortgage given to McCarthy.

On July 1, 1927, Thornton and wife (who, as we assume, had purchased the property, though this fact is not averred) executed to the defendant a junior mortgage, recognizing therein the existence of the first mortgage given by the complainants. The defendant foreclosed the Thornton mortgage and became the purchaser at the sale, and thereafter purchased the first mortgage from its then owner and made demand on the complainants for the payment of the indebtedness thereby secured.

Whether the defendant purchased the property, assuming the payment of the first mortgage, and thereafter sold the property to Thornton and wife, is not averred in the bill, though this is stated by appellees in their brief and argument.

If these are the true facts of the case, the defendant by such assumption of the first mortgage debt became primarily liable therefor, and the complainants were liable merely as sureties. Robson v. O'Toole et al., 45 Cal.App. 63, 187 P. 110; People's Sav. Bank of Tallassee v. Jordan, 200 Ala. 500, 76 So. 442; Eppes v. Thompson, 202 Ala. 145, 79 So. 611; Mitchell v. Hickman, 208 Ala. 345, 94 So. 284; White v. Schader et al., 185 Cal. 606, 198 P. 19, 21 A. L. R. 499, and note 504.

And in an action at law by the defendant, on the notes representing the mortgage debt, complainants could plead this...