Opinion
8 Div. 474.
April 13, 1933. Rehearing Denied May 18, 1933.
Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr., Judge.
Harris Burns, of Birmingham, and Bradshaw Barnett, of Florence, for appellant Mary A. Roberts.
Simpson Simpson, of Florence, for appellant S. S. Roberts.
The demurrers are addressed to the bill as a whole and to each paragraph thereof, and not a general demurrer to be considered without reference to the different aspects of the bill.
W. H. Mitchell, of Florence, for appellee.
A demurrer to the bill and to each paragraph separately and severally is to be treated only as a demurrer to the bill as a whole. If the bill contains equity in any of its aspects, the demurrer to the bill as a whole cannot be sustained. Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413; Wood v. Estes, 224 Ala. 140, 139 So. 331; Whiteman v. Taber, 203 Ala. 496, 83 So. 595; Kyser v. Amer. Surety Co., 213 Ala. 614, 105 So. 689.
The bill is for the foreclosure of a mortgage on real estate and deficiency decree over against defendants S. S. and Mary Roberts.
As to the foreclosure feature, the sufficiency of the bill is clear and is not challenged by any assignments of demurrer. Stuckey v. Murphy, post, p. 700, 145 So. 914; Rountree v. Satterfield, 211 Ala. 464, 100 So. 751.
The demurrers separately interposed by S. S. Roberts and Mary Roberts are properly to be construed under the cases of National Union Fire Ins. Co. v. Lasseter, 224 Ala. 649, 141 So. 645, 646, Wood v. Estes, 224 Ala. 140, 139 So. 331, Hall v. Metropolitan Life Ins. Co., 225 Ala. 455, 143 So. 452, and authorities therein cited, as addressed to the bill as a whole, and are to be so considered here.
As above stated, the bill as a whole had unquestioned equity, and under Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413, the chancellor presumably, for the reason given, did not pass upon the partial demurrers. The questions argued, therefore, as to that aspect of the bill seeking a deficiency decree, are not here presented for consideration. Wood v. Estes, supra.
It follows that the decree is due to be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.