Opinion
6 Div. 808.
May 14, 1931.
Appeal from Circuit Court, Jefferson County; W. M. Walker, Judge.
Mullins, Pointer Deramus, of Birmingham, for appellants.
Where a bill for foreclosure of a mortgage by the assignee alleges that the assignee had purchased the notes and mortgage and is the legal owner and holder thereof, the original mortgagee is not a necessary party. Rountree v. Satterfield, 211 Ala. 464, 100 So. 751; Thompson v. Menefee, 218 Ala. 332, 118 So. 587. An indorsement may be either in blank or special, and it may also be restricted or qualified or conditional; and a qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. Code 1923, §§ 9059, 9064.
A. Leo Oberdorfer, of Birmingham, for appellee.
Where a bill by the indorsee of notes and transferee of mortgage against the mortgagor and his assignee and transferor seeks foreclosure and a deficiency judgment, the transferor is a proper party. 5 Jones on Mortgages, §§ 1821, 1823; Hubbard v. University Bank, 125 Cal. 684, 58 P. 297; Meehan v. First Nat. Bank, 44 Neb. 213, 62 N.W. 490; Jarman v. Wiswall, 24 N.J. Eq. 267; Western Land Sec. Co. v. Okla. Farm Mortg. Co., 111 Okl. 138, 239 P. 223; Wilsey on Mtg. Fel. (3d Ed.) 253; Titus v. Woods, 45 Cal.App. 541, 188 P. 68; Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 So. 931; Code 1923, § 6652; Teal v. Lewis, 85 Ala. 218, 4 So. 695. An objection not raised by the demurrer cannot be presented on appeal.
The original mortgagee is not a necessary party to a bill filed to foreclose the mortgage by his assignee when no deficiency decree is sought against him as assignor of the mortgage. Rountree v. Satterfield, 211 Ala. 464, 100 So. 751. But the present bill seeks a deficiency decree over against the mortgagors and the assignor, the mortgagee, as well.
Whether or not good pleading should require that the nature of the indorsement or transfer of the notes and mortgage be set out, or so describe the same as to enable the court to determine whether or not the said assignment rendered the assignor a guarantor and liable for the debt, the bill does aver that the mortgagees, as indorsers and transferors, are liable for the debt. This, of course, rendered the Saias, the mortgagees, necessary parties. This averment is not challenged as a conclusion by the demurrer, nor does any ground of the demurrer specifically challenge the failure of the bill to set out or describe the indorsement.
As the bill contains equity, it was not subject to the general demurrer, and the other grounds must have specifically set out the defects sought to be reached. Section 6553 of the Code of 1923.
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, THOMAS, and BROWN, JJ., concur.