Wilson v. Henderson

• Decision Date: 17 May 1917
• Docket Number: 4 Div. 652
• Citation: 75 So. 935,200 Ala. 187
• Parties: WILSON et al. v. HENDERSON.
• Court: Alabama Supreme Court

75 So. 935

200 Ala. 187

WILSON et al. v. HENDERSON.

4 Div. 652

Supreme Court of Alabama

May 17, 1917

On Rehearing, June 21, 1917

Appeal from Chancery Court, Coffee County; O.S. Lewis, Chancellor.

Suit by J.E. Henderson against W.J. Wilson and others. From a decree for complainant, defendants appeal. Decree reversed, and cause remanded for reformation of the pleadings.

J.A Carnley, of Enterprise, for appellants.

W.W Sanders, of Elba, for appellee.

McCLELLAN J.

J.E Henderson (appellee) took an assignment of a mortgage purporting to be executed by W.J. and Lizzie Wilson (husband and wife) to H.L. Peacock. The mortgage was foreclosed by Kirkland as attorney for Henderson; the attorney bidding in the property at the foreclosure sale, and taking a foreclosure deed thereto in his name by verbal agreement with the assignee to hold the title for him. Kirkland brought an action of ejectment (later revived in the name of the devisee under his will) against the Wilsons to recover the full title to the 160 acres described in the mortgage. On the trial it developed that W.J. Wilson owned only 40 acres in fee; that he had an undivided half interest only in the remaining 140 acres, the other half being owned by his wife, Lizzie Wilson and that since the debt for which the mortgage was executed was the debt of the husband the wife's undivided half interest was not subject to, was not effectually conveyed by the mortgage. The plaintiff prevailed in the ejectment suit.

Henderson filed this bill against Mrs. Young, formerly Mrs. Kirkland, and W.J. and Lizzie Wilson. The relief sought was this: The investment of the complainant with the title apparently acquired by Kirkland at the foreclosure, this relief being desired and to be effected against Mrs. Young, the devisee under her husband's will; and the sale, for division of the proceeds, of the 120 acres of land in which the complainant was a tenant in common with Lizzie Wilson. Decree pro confesso was taken against Mrs. Young. The Wilsons demurred to the bill; the chief point of objection urged being that the bill was multifarious. The chancellor overruled the objection.

The chancellor's conclusion was justified by the authority afforded by Truss v. Miller, 116 Ala. 494, 505, 22 So. 863, 866; Ellis v. Vandegrift, 173 Ala. 142, 148, 155, 55 So. 781; Stone v. Insurance Co., 52 Ala. 589; Hunter v. Briggs, 184 Ala. 327, 63 So. 1004. In Truss v. Miller, supra, it was said: "When, as in the present case, the objection is, that distinct and unconnected matters are joined against several defendants, it is not necessary that all the parties should have an interest in all the matters of controversy; it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others."

The subject-matter of the bill is a tract of land. The relation of Mrs. Young thereto and the relief sought against her is distinct from that sought against the appellants, whose mortgage is claimed to be the source of the complainant's rights in the premises. On the part of the appellants, they are concerned in the sale of the land in which the complainant avers he is a tenant in common. The common ligament connecting all of the parties is the subject-matter of the cause, viz. the land; and the relief sought invoked the court to determine, in accordance with equity's customary thoroughness, all rights or claims related to the subject-matter.

Furthermore, since the costs of a cause in equity are within the control of the court, as the chancellor well observed, the appellants could not be prejudiced by the presence of Mrs. Young as a party respondent or by the fact that a divestiture of the title in her, by succession, that in truth was complainant's, is sought in the bill. Stone v. Insurance Co., 52 Ala. 589; Ellis v. Vandegrift, 173 Ala. 142, 148, 55 So. 781. There was no error in overruling the demurrer to the bill.

In their cross-bill the appellants set up that the mortgage was invalid, and the foreclosure ineffectual, because the mortgage was not efficiently executed. The appellee, original complainant and respondent to the cross-bill, answered, and sought the benefit of the estoppel wrought by the judgment in the ejectment suit, on the trial of which the execution of the mortgage was a contested issue. The sufficiency of the response to the cross-bill through the estoppel asserted was questioned by the cross-complainant. The answer itself did not carry allegations wherefrom it could be concluded that the appellee (original complainant and respondent in the cross-bill) was so related to the litigation and the judgment in the ejectment suit as to be entitled to avail of the estoppel thereby created, but from paragraph 3 of the original bill it appears that the ejectment suit was instituted, in the name of the Kirklands, for his (complainant's) use and benefit; that the Kirklands were not really the owners of the land; and that this fact was brought out on the trial of the ejectment suit.

Henderson was, in reality, the plaintiff in that action, and would have been bound by the judgment therein had it favored the defendants, the Wilsons. Tarleton v. Johnson, 25 Ala. 300, 60 Am.Dec. 515. Since the cause, constituted of the original bill and responses thereto and of the cross-bill and the response thereto, was one cause (Bell v....