Wiggins Estate Co. v. Jeffery

• Decision Date: 16 November 1944
• Docket Number: 3 Div. 405.
• Citation: 246 Ala. 183,19 So.2d 769
• Parties: WIGGINS ESTATE CO., Inc., et al. v. JEFFERY et al.
• Court: Alabama Supreme Court

19 So.2d 769

246 Ala. 183

WIGGINS ESTATE CO., Inc., et al. v. JEFFERY et al.

3 Div. 405.

Supreme Court of Alabama

November 16, 1944

Appeal from Circuit Court, Escambia County; F.W Hare, judge.

Leon G. Brooks, of Brewton, for appellants.

C.L Hybart, of Monroeville, for appellee and cross-appellants.

THOMAS Justice.

The appeal is from a decree in equity on a bill of review filed under the provisions of Code 1923, §§ 6600-6608, Code 1940 Equity Rules Tit. 7 Appendix. It is a direct attack on the decrees in question. Vaughan v. Brue et al., 245 Ala. 107, 16 So.2d 17, 150 A.L.R. 668. A bill of this nature may be challenged as to sufficiency by demurrer. Clements v. Clements, 200 Ala. 529, 76 So. 855; 30 C.J.S., Equity, page 1084, § 648.

We shall consider at length that no tenable ground of demurrer may be sustained to the right of Gerald Stanley Givens to maintain the bill. Mitchell v. Hardie, 84 Ala. 349, 4 So. 182, 183; Stuart v. Strickland, 203 Ala. 502, 83 So. 600; Graves v. Brittingham, 209 Ala. 147, 95 So. 542; Code 1923, § 6607, Equity Rule 66, Code 1940, Tit. 7 Appendix.

The appeal is from a decree overruling demurrers of the respondent to the bill of complaint as to Gerald Stanley Givens, one of the five complainants. The bill seeks to set aside decrees rendered by the circuit court on January 21, 1936, directing the foreclosure of a mortgage on lands; and on April 21, 1936, confirming the sale of said lands under the decree, and rendering a deficiency judgment or decree against these complainants.

The bill of review was filed by the several minors without consent of the court under Equity Rule 66, Code 1940, Tit. 7 Appendix, p. 1099. The substantive right asserted by the bill had accrued in 1938. No ground of demurrer challenged the bill for its filing without consent of the court as it was recognized to be within the amended rule.

Among the old books cited in Planters' & Merchants' Bank v. Dundas et al., 10 Ala. 661, is Perry v. Phelps, 17 Vesey Jr.'s Reports, 177, wherein Lord Chancellor Eldon said of bills of review that, "The question, whether the cause is well decided, will be argued in that shape: not, whether the Decree is right or wrong on the face of it. The cases of error apparent, found in the books, are of this sort; an infant not having a day to show cause & c.; not merely an erroneous judgment."

The matter was considered by Judge Stone in McDougald's Adm'r v. Daugherty, 39 Ala. 409, saying that for error apparent, it is permissible to look to the pleadings, the minute of the testimony of the hearing, the decree of the chancellor, the accompanying opinion on which he states the reasons on which the decree is based and all the proceedings in the original cause, except the testimony. The later cases stating the rule are: Rochelle v. Rochelle, 237 Ala. 530, 187 So. 451; Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So.2d 492, touching a case of newly discovered evidence.

A condensed statement of the facts presented by the bill of review filed on August 26, 1941, and a digest of the suit exhibited, leading to the decrees assailed bring within narrow limits the questions to be determined. They are: (1) Whether the court had jurisdiction of the parties and the subject-matter in rendering the decree of January 21, 1936, ordering the foreclosure of the mortgage, and entered said decree without committing an error of law; and (2) whether the decree of April 21, 1936, was likewise within the authority of the court and free from error as to the deficiency judgment.

The facts stated in the pleading are that James Alexander Givens died prior to June 26, 1926, without a will, leaving as his heirs and next of kin Rose E. Givens, his widow, and the following named children: Bertha G. Moll, Angeline G. Taylor and Charles Givens, who were over twenty-one years of age; Rose Marie Givens, Lillian Hozelle Givens, Robert Henley Givens, Susie Kate Givens and Gerald Stanley Givens, who were minors. He owned all of the real estate which is the subject-matter of the suits. The widow was appointed administratrix of his estate and appointed guardian for the five minor children, who are complainants in this bill. On June 26, 1926, Rose E. Givens, individually and as administratrix of said estate, and as guardian of said minors, together with the adult heirs, negotiated a loan of $2,000 from Wiggins Estate Co., Inc., "for the purpose of paying taxes and expenses due upon the real estate belonging to the heirs of the said James Alexander Givens, deceased." A promissory note due June 26, 1927, was given to evidence this loan signed as an individual, as administratrix, and as guardian by Rose E. Givens and by two of the adult heirs, and was delivered to the Wiggins Estate Co., Inc., together with a mortgage on 1,684 acres of real estate, specifically described in Escambia County, Ala.

Default being made in payment of the debt, mortgagee filed a bill to foreclose against the adult heirs and Rose E. Givens, individually, as administratrix, and as guardian of the heirs who were minors when the mortgage was made. The mortgage was signed by Rose E. Givens, individually, and in her representative capacity, and by the adult heirs.

The answer by R.P. Taylor contains denials, alleging that he joined as the husband of an heir, was not liable to a judgment over or for costs, and alleges that he was promised there should be no deficiency judgment against him. The decree following was that of default on personal service by sheriff against all parties except Taylor, and no such judgment was rendered against him. An order of reference followed, reciting that the minors were represented by guardian. A cross bill was filed by Robert H. Givens and Rose Marie Givens Jeffery, praying cancellation of mortgage as a cloud on their title. Kate and Stanley Givens nominated a guardian ad litem who accepted appointment and denied the material allegations. One Williams, as next friend of Stanley and Kate Givens, made them parties to the answer and cross bill filed by Robert Givens and Marie Jeffery, and alleged they were owners of an interest in the property affected by foreclosure. Then followed an order reciting decrees pro confesso against the other heirs. There was submission on reference by complainants' attorneys and the report of the register found due on mortgage $2,330.81, and $349.62 as attorney's fees.

Complainants submitted on the original bill and exhibits, decree pro confesso, answer to cross bill, testimony of the notary before whom the original bill was sworn to and complainants' attorney. "The respondent submitted on answer to bill of complaint as amended and cross bill." It is noted that neither the attorney in fact nor the guardian ad litem contested the validity of the debt of the minors. The decree of sale of June 21, 1936, recites that the money loaned on the mortgage was for preservation of the estate of said heirs; that if Rose E. Givens, as administratrix of the said estate and as guardian of the minors, had applied to the court in the first instance for authority to join the adult heirs in obtaining the loan for the purpose of paying debts then due, the court would have entered a decree authorizing the same; that said loan be ratified and confirmed in all respects as if authorized at the outset and that the interests of the heirs who were minors when the loan was obtained by their guardian should be sold along with the interests of the adult heirs who executed the note and mortgage; and that Rose E. Givens, as administratrix and as guardian, had agreed when she obtained the loan and executed the mortgage that she would if necessary have the same approved and ratified by appropriate proceedings to that end, so that the court would treat as done what in equity and good conscience she should have done. The court further declared (1) a lien upon the lands for the debt with interest and attorneys' fees as shown by the report of the register on the reference and ordered the property sold by the register at public sale after due advertisement; (2) that the amount due the complainants be satisfied with the proceeds of the sale in whole or in part and any surplus paid to the respondents; that (3) if the amount realized should be insufficient to pay the debt and costs, the register should upon confirmation of the sale enter a deficiency judgment and decree against all of the respondents individually as well as Rose E. Givens, as administratrix of said estate and as guardian of the minors, for such sum as should remain due after duly crediting the proceeds of the sale. The register was ordered to report his sale to the court for confirmation or rejection as the court should rule.

After sale and report by the register, the court entered an order of confirmation. On April 21, 1936, on motion of the complainants, it adjudicated the balance due on the debt, after crediting the proceeds of the sale, to be $928.70, and rendered a deficiency judgment for that amount against all the respondents individually and against the administratrix and guardian of this complainant.

A foreclosure deed was made to Wiggins Estate Company, Inc. the mortgagee, purchasing at the sale, conveying to it the real estate embraced in the mortgage. On May 10, 1938, Wiggins Estate Company, Inc., conveyed its title to C.A. Moulton and assigned to him the deficiency judgment rendered in favor of Wiggins Estate Company, Inc., and against respondents in said judgment. On August 1, 1938, execution was issued, and on said judgment the sheriff levied upon a large body of other lands of the respondents, sold the same to appellant C.A. Moulton, and executed and delivered to him the sheriff's deed of date of October 10, 1938, to 1,650 acres of...