Wood v. Wood

• Decision Date: 13 May 1902
• Citation: 33 So. 347,134 Ala. 557
• Parties: WOOD v. WOOD. [a1]
• Court: Alabama Supreme Court

33 So. 347

134 Ala. 557

WOOD v. WOOD. ^[a1]

Supreme Court of Alabama

May 13, 1902

Appeal from chancery court, Pike county; A. H. Alston, Chancellor.

Suit by M. A. Wood against Willis C. Wood. Decree for complainant. Defendant appeals. Affirmed.

The bill in this case was filed by the appellee, M. A. Wood against the appellant, Willis C. Wood; and sought to have the defendant enjoined from the attempted foreclosure of a mortgage executed by the complainant and others to the defendant, and to have it declared that the question of indebtedness vel non upon said mortgage had been adjudged by a court of competent jurisdiction ascertaining that there was nothing due thereon, and that said mortgage be delivered up and canceled. It was also further prayed in the bill that if the complainant was mistaken as to the mortgage debt having been paid, that he be allowed to redeem from under said mortgage. The ground upon which it was sought to enjoin the foreclosure of said mortgage and have said mortgage delivered up and canceled was, that in the previous bill filed by the defendant in the present suit against the present complainant and others, it was adjudged and determined that there was nothing due upon said mortgage and that it was not an existing and enforceable security. The proceedings in the former suit are made an exhibit to the bill. The decree which was rendered in the former suit of W. C. Wood against the present complainant and others was as follows: "In consideration of the legal evidence the court is of opinion that M. A. Wood, F. S. Wood and B. W. Wood named in the bill were not partners of the firm of J. P. Wood & Co. and not liable to account to complainant as prayed in this suit. The court is further of opinion that the complainant is not entitled to the relief for which he prays. It is therefore ordered, adjudged and decreed that relief be denied, and that the complainant's bill be dismissed out of this court."

The other facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

On the final submission of the cause on the pleadings and proof the chancellor decreed that the question of indebtedness by the complainant to the respondent was res adjudicata, and that it had been judicially ascertained in the former suit that there was nothing due upon the mortgage involved in the present suit, and further that the complainant in the present suit was entitled to the relief sought in the bill. It was further ordered that said mortgage be delivered up and canceled, and that the injunction previously issued restraining the foreclosure of said mortgage be made perpetual. From this decree the respondent appeals, and assigns the rendition thereof as error.

Tyson J., dissenting.

Gunter & Gunter, for appellant.

Foster Samford & Carroll, for appellee.

HARALSON J.

The bill was filed by M. A. Wood against W. C. Wood, to redeem certain described lands from a mortgage executed by himself J. P. Wood and F. S. Wood, on the 7th January, 1885, to said W. C. Wood.

The bill alleges that complainant is in possession of and owns a portion of the land embraced in the mortgage, not having parted with any right or title held by him since the execution of said mortgage, and from aught appearing, he and said J. P. and F. S. Wood, owned jointly the other lands therein described. The lands under mortgage are described in the bill, and the portion owned entirely by the complainant is also described.

It alleged that said W. C. Wood had advertised the lands for sale, and was proceeding to sell the same under the power in the mortgage. Said M. A. Wood, one of the mortgagors, filed this bill, as stated, to redeem, and to enjoin said sale by the mortgagee, W. C. Wood, alleging that the mortgage debt had been fully paid and there was nothing due on the mortgage; alleging, also, that it had been adjudicated between them by a competent court having jurisdiction of the parties and subject-matter, that there was nothing due on the mortgage; and in the alternative, that if mistaken in this, and it should be ascertained by the court that there was anything due on said mortgage, complainant submitted himself to the judgment and decree of the court with respect thereto, and offered to pay such amount as might be found due.

It will be seen, then, that the main question in the case, as conceded by counsel on both sides is, whether or not the question of indebtedness of the complainant, M. A. Wood, to the defendant, W. C. Wood, is res adjudicata; and, incidentally, if in a bill of this character, as contended by respondent, the other mortgagors, J. P. and F. S. Wood, are not necessary parties.

In what respect are they interested? In the part of the land mortgaged, claimed to be owned entirely by complainant, M. A. Wood, they have no interest, since it is alleged and proved, they have conveyed their interests therein to him. But, there are other lands in the mortgage besides these, in which, as J. P. and F. S. Wood joined in the mortgage, it would seem they were interested with complainant, and would, themselves, have a right to redeem. It is true, the complainant, if anything is found to be due and owing on the mortgage debt, could not redeem a part of the mortgaged premises, but would have to redeem the whole, by paying the entire mortgage debt.--2 Pom. Eq. Jur.§§ 1211, 1212, 1221; Lehman, Durr & Co. v. Moore, 93 Ala. 186, 9 So. 590; Jones v. Matkin, 118 Ala. 348, 24 So. 242; McQueen v. Whetstone (in MS.) 30 So. 548. The rule as laid down by Daniel and Story, as to the proper parties is,--to quote the language of Daniel,--"As a person entitled to a part only of the mortgage money cannot foreclose the mortgage without bringing the other parties interested in the mortgage money before the court, so neither can a mortgagor redeem the mortgaged estate without making all those who have an equal right to redeem with himself parties to the suit. * * * The mortgagee has the right to insist that the whole of the mortgaged estate shall be redeemed together; and for this purpose, that all the persons interested in the several estates or mortgages should be made parties to a bill seeking an account and redemption." 1 Daniel, Ch. Prac. 212; Story, Eq. Pl. §§ 185-188. Whether there was reversible error in not having made all his co-mortgagors parties, either as complainants or defendants,--conceding that they were necessary parties, in the matter of the alternate redemption as prayed for,--will depend, however, on the decision of the other and main question in the case, as to whether or not the indebtedness by complainant and his co-mortgagors, J. P. and F. S. Wood, had been, theretofore, adjudicated between them by a competent court having jurisdiction of them and of the subject-matter of said mortgage indebtedness. If the question of indebtedness on the mortgage had been so adjudicated, and it had been ascertained that the mortgage had been fully paid, there could, of course, be no room for redemption from it, and this would apply to each of the mortgagors, and destroy the mortgage as to each and all of them, which fact could afterwards be set up by either, for himself, in any proceeding by the mortgagee to enforce the mortgage, or by complainant to cancel it as a cloud on his title, without reference to the other mortgagors, or making them parties.

Let us then consider the question of res adjudicata. It grows out of a case, as shown, filed in the chancery court of Pike county on the 2d of February, 1887, by the defendant in this case, W. C. Wood, against complainant, M. A. Wood, and said J. P. and F. S. Wood, and B. W. Wood, the latter being brothers, and all, except B. W. Wood, joint mortgagors in said mortgage. The facts of that case, as it appeared in this court on appeal, and as recited in the opinion of the court in 119 Ala. 184, 24 So. 841, are referred to by both sides in this case as being a correct statement. For convenience, we adopt that statement, where it is said that said W. C. Wood claimed "that on August 1, 1881, a copartnership was formed between himself and J. P. Wood, F. S. Wood and B. W. Wood, under the name of J. P. Wood & Co., by the terms of which, complainant was to have one-half interest therein, and defendants the other half, which partnership was dissolved on August 1, 1884; and praying for the appointment of a receiver and an accounting between the partners, that a lien be...