Opinion
8 Div. 595.
June 12, 1924.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
D. Isbell, of Guntersville, for appellant.
Complainant Reed has no right to maintain the bill. Moseley v. Moseley, 86 Ala. 289, 5 So. 732. The right is alone in the mortgagor, Coulter. Woodruff v. Adair, 131 Ala. 530, 32 So. 515; Hicks v. Dowdy, 202 Ala. 535, 81 So. 37; 2 Mayfield's Dig. 1100. No binding, continuing debt was shown, which was necessary to establish the fact the conveyance was intended as a mortgage. West v. Hendrix, 28 Ala. 226; Peeples v. Stolla, 57 Ala. 53; Haynie v. Robertson, 58 Ala. 37; Douglass v. Moody, 80 Ala. 61. The amendment worked a change in the cause of action and rendered the bill multifarious. Ward v. Patton, 75 Ala. 207; Caldwell v. King, 76 Ala. 149; Mobile Bank v. Burke, 94 Ala. 125, 10 So. 328; Sims, Ch. Pr. 214; Force v. Age-Herald Co., 136 Ala. 276, 33 So. 866; Harrison v. Maury, 140 Ala. 523, 37 So. 361; Henry v. Tenn. L. S. Co., 164 Ala. 376, 50 So. 1029; McDaniel v. Turnipseed, 165 Ala. 189, 51 So. 757; Manegold v. Beavan, 189 Ala. 241, 66 So. 448; Webb v. Butler, 192 Ala. 287, 68 So. 369, Ann. Cas. 1916D, 815; Singer v. Singer, 165 Ala. 144, 51 So. 755, 29 L.R.A. (N.S.) 819, 138 Am. St. Rep. 19, 21 Ann. Cas. 1102; Ellis v. Vandergrift, 173 Ala. 142, 55 So. 781.
Rayburn, Wright Rayburn, of Guntersville, for appellees.
No brief reached the Reporter.
The case made by the amended bill is this: A. contracted to sell real estate to B. B. borrowed from C. the money to meet the cash payment, and caused A. to execute to C. an absolute deed of conveyance intended as a mortgage to secure the loan. Upon payment of the mortgage debt C. was to convey the property to B. B. gave A. his notes for the deferred payments of purchase money. The entire agreement, so far as it defined the rights of B. rested in parol. Neither A. nor C. gave him any writing. Thereafter B. paid to C. all or a portion of the mortgage debt, and paid a portion of the deferred notes to A. A. and B. file a bill against C. for an accounting and redemption, and for general relief. There is an added prayer that the vendor's lien held by A. for balance on the deferred notes be foreclosed.
Demurrers assail the general equity of the bill, set up the statute of frauds, and attack the bill as multifarious.
The appeal is from a decree overruling the demurrers.
The power of a court of equity to declare a deed absolute in form to be a mortgage only is unquestioned. The essential fact is that it was intended as security for debt. It implies a debt due the mortgagee and a conveyance accepted as security therefor. These facts may be proven by parol evidence.
It is immaterial whether the debt secured is that of the mortgagor or the debt of another. One person may give a mortgage on his lands to secure the debt of another. When the debt is paid the mortgagor is entitled to have his property released. If a deed intended as a mortgage is given the same reason would entitle the grantor to have the title revested upon payment of the debt. All the incidents of an accounting and redemption apply in the one case as in the other.
Now, if in the transaction, or thereafter, the mortgagor sells or assigns his equity of redemption, the purchaser would succeed to the right to be invested with the legal title on payment of the mortgage debt. The bill does not show that the purchaser, on payment of a portion of the purchase money, obtained possession of the property, unless this be implied from the averment that later on the purchaser agreed with the mortgagee that the latter was to collect and did collect the rents on the property for credit on the mortgage debt.
If the purchaser did not obtain possession, his mere payment of a portion of the purchase money would not take the case out of the statute of frauds. It was subject to be avoided by the vendor.
But the statute of frauds is a personal defense. The mortgagee cannot set up the statute of frauds in the transaction as between the vendor and purchaser.
The vendor may waive the statute, and does so by joining the purchaser in the bill affirming the sale and seeking a cancellation of the mortgage or redemption therefrom.
Is the bill multifarious? Both complainants have an interest in the property. If the purchaser paid part of the purchase money and obtained possession, the equity of redemption passed to him, subject to a vendor's lien in favor of the vendor for the balance due on the deferred purchase-money notes. In such event the decree, on redemption, should vest the legal title in the purchaser subject to such lien. If, however, the possession did not pass, the equity of redemption is still in the vendor, and the purchaser holds under an executory contract of purchase. In that event, the legal title, on redemption from the mortgage, should be revested in the vendor to be conveyed to the purchaser when he has paid the balance of the purchase-money notes. In either event both vendor and purchaser are proper parties complainant. It is immaterial to the respondent mortgagee that they pray for title on redemption to be conveyed to the purchaser. The matter of interest to the respondent is whether his deed is a mortgage. This the bill sufficiently avers. As said by the learned judge in his decree, the relief can be molded as the equities shall appear upon final hearing on pleadings and proof.
It is an anomaly in equity pleading for two cocomplainants to jointly pray for a decree in favor of the one foreclosing his vendor's lien against the other. The bill is not multifarious, however, merely because it prays too much. This added prayer may be treated as surplusage.
It is suggested in brief that the bill does not sufficiently show that all parties intended the deed to operate as a mortgage. If so, such defect was not pointed out by special demurrer. The court will not be put in error in such case.
The case of Moseley v. Moseley, 86 Ala. 289, 5 So. 732, relied upon by appellant, was departed from in Hieronymus v. Glass, 120 Ala. 46, 50, 23 So. 674. On second appeal of the case last cited (Glass v. Hieronymus, 125 Ala. 140, 145, 28 So. 71, 82 Am. St. Rep. 225) the Moseley Case was distinguished and held authority on the sole proposition that it must sufficiently appear that the deed was intended as security for debt.
It may be further noted that in the Moseley Case the vendor parted with all interest in the property, retained no equity of redemption nor lien thereon. In this it is not in point here.
We find no reversible error in the record.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.