Opinion
1 Div. 407.
May 13, 1926. Rehearing Denied June 10, 1926.
Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.
Stevens, McCorvey, McLeod, Goode Turnner, of Mobile, for appellants.
Since the complainants seek only a money judgment or decree, their remedy at law is plain and adequate. Pond v. Lockwood, 8 Ala. 669; Russell v. Little, 28 Ala. 160; Harrison v. Deramus, 33 Ala. 463; Gulf Compress Co. v. Harris, 158 Ala. 343, 48 So. 477, 24 L.R.A. (N.S.) 399; Sloss Co. v. Maryland Cas. Co., 167 Ala. 557, 52 So. 751; Brown v. Sheridan, 185 Ala. 122, 64 So. 68. The amended bill is a clear departure from the original bill. Land v. Cowan, 19 Ala. 297; Larkins v. Biddle, 21 Ala. 252; Rumbly v. Stainton, 24 Ala. 712; Harper v. Raisin Fert. Co., 158 Ala. 329, 48 So. 589, 132 Am. St. Rep. 32; Henry v. Tenn. L. S. Co., 164 Ala. 376, 50 So. 1029. The suit is barred by laches. Humphres v. Terrell, 1 Ala. 650; Gunn v. Brantley, 21 Ala. 633; James v. James, 55 Ala. 525; Fowler v. Ala. I. S. Co., 164 Ala. 414, 51 So. 393; Code 1923, § 8955. Barret is not entitled to recover; hence the bill is subject to demurrer. James v. James, supra; Taylor v. Robinson, 69 Ala. 269; Daniel v. Daniel, 202 Ala. 635, 81 So. 577. Staples is not a necessary party. Lamkin v. Lovell, 176 Ala. 334, 58 So. 258; Bailey v. Jefferson, 186 Ala. 214, 64 So. 955.
George B. Cleveland, of Mobile, for appellees.
There is no departure in this case, and the remedies sought are equitable. Horst v. Barret, 213 Ala. 173, 104 So. 530. A demurrer for want of equity is not the proper proceeding. Acts 1915, p. 830. B. T. Barret was a proper party. Gerald v. McKenzie, 27 Ala. 166. Even if he were not entitled to recover, this would not defeat the bill. Code 1907, § 3212. Complainants are not guilty of laches. Horst v. Barret, supra.
The allegations of the bill of complaint show sufficiently and clearly that the deed of conveyance from the complainant Kate W. Barret to the respondent Staples was in purpose and effect a mortgage, given as security for the debt of B. T. Barret to the respondent bank, and hence that, as against the bank, or its assigns having notice, Mrs. Barret would be entitled to a decree of cancellation. Giddens v. Powell, 108 Ala. 621, 19 So. 21; Douglass v. Moody, 80 Ala. 61; 27 Cyc. 1010, 5.
But since the assignee of the bank, L. V. Pringle, is a resident of Mississippi and beyond the jurisdiction of the court in this case, and since, also, the Mississippi court has sold the land for division among the owners of the legal title, it is clear that the remedy merely by cancellation of Mrs. Barret's deed is not now an adequate means of relief. For the same reasons, assuming that the deed was effective as a mortgage, the remedy by redemption would now be unavailable. In each of the cases stated, the loss of the remedy has resulted from the act of the vendee or mortgagee in disposing of the legal title so as to place it beyond the reach of Mrs. Barret's rights and equities, which were not apparent to a purchaser through the bank.
When a mortgagee thus defeats the equitable right of a mortgagor to redeem the property, "the mortgagee is responsible to the mortgagor for the value of the land conveyed, and not merely for the proceeds of the sale, and * * * the mortgagor may claim the proceeds of the sale or the value of the land at his election." Van Heuvel v. Long, 200 Ala. 27, 75 So. 339; 27 Cyc. 1033, and cases cited in note 84. And the same principle must be applicable when the wife's right to avoid the mortgage has been defeated by the mortgagee's conveyance of his apparent title to a third person.
If the complainant Kate W. Barret is entitled, as averred in the bill, to have her deed declared to be a mortgage, and, as such, invalid entirely because but a security for her husband's debt, then she would be entitled to a decree for the value of her interest in the land at the time it was sold by the bank, or, at her option, for the amount of the proceeds of that sale. In that event, her husband's debt or the balance due on it has nothing to do with the case. If, on the other hand, she should be entitled merely to redemption as a mortgagor, the amount of her recovery would be reduced by the amount of the debt remaining unpaid — that is, the balance due after all payments thereon have been duly credited.
The equity of the bill of complaint, as amended, is fully supported by the case of Van Heuvel v. Long, supra. But the special prayer for relief misconceives the nature of Mrs. Barret's rights in the premises, for neither she nor her husband, B. T. Barret, appear to have any right to recover the payments made by the latter on the debt confessedly due from him to the bank. However, the general prayer is sufficient for relief upon the equities shown by the bill, and the special prayer may be disregarded. Rosenau v. Powell, 173 Ala. 123, 128, 55 So. 789.
The bill shows that Mrs. Barret's mortgage deed was executed on December 29, 1911, and the bill was filed on May 9, 1922, more than ten years afterwards. As to its aspect of a bill to cancel the mortgage deed as one of suretyship by a wife, the lapse of ten years before seeking relief would prima facie show laches, and the bill would be subject to demurrer on that ground. But the fault of laches is not imputed to a complainant, who has all the while been in possession of the property with respect to which relief is sought. Fowler v. Ala. I. S. Co., 164 Ala. 414, 418, 51 So. 393. The allegation of complainant's continued possession of the property after her conveyance of it refutes the demurrer's objection as for laches apparent from the bill.
As to the alternative aspect of the bill, as one in the nature of a bill for redemption merely, the same principle applies. Ordinarily, the right to have the deed declared a mortgage must be asserted within ten years after the execution of the deed. Gerson v. Davis, 143 Ala. 381, 39 So. 198. But this is not so where the mortgagee has recognized the deed as a mortgage, and especially where the mortgagor has retained possession of the land. And, in the absence of foreclosure, the equity of redemption is not lost unless the mortgagee hold possession for ten years after the law day without recognition of the equity. Dixon v. Hayes, 171 Ala. 498, 55 So. 164. Here the law day was fixed at two years from the date of the deed by the written contract for repurchase, which was tantamount in equity to a right to redeem. As for laches, the demurrer was properly overruled.
Under our recent decisions, giving effect to section 6526, Code of 1923 (section 3095, Code of 1907), the double aspect of the bill, seeking relief upon inconsistent alternatives, does not render it multifarious or subject to demurrer. Macke v. Macke, 200 Ala. 260, 76 So. 26.
We think, however, that the bill is demurrable as for misjoinder of parties. The husband, B. T. Barret, had no interest in the subject-matter of the suit, the mortgaged land, and can have none in any recovery under either aspect of the bill. Having no interest to be served or protected, and being entitled to no relief, he is not a proper party complainant to the bill, and his misjoinder in that capacity renders the bill subject to demurrer. Rogers v. Torbut, 58 Ala. 523; Commercial, etc., Ass'n v. Parker, 84 Ala. 298, 4 So. 268; Lehman Co. v. Greenhut, 88 Ala. 478, 7 So. 299; 21 Corp. Jur. 307; Id. 334, § 329.
This rule has not been changed by section 3212, Code 1907 (now section 6645, Code 1923), which relates only to submissions for final decree on the evidence and does not change the rules of pleading or the limitations upon the joinder of parties complainant when objection to misjoinder is seasonably made by demurrer. See Stewart v. Snider, 197 Ala. 129, 130, 72 So. 409.
We hold that the demurrer as for misjoinder of parties complainant should have been sustained, and for the error of its overruling the decree will be reversed and a decree will be here rendered sustaining that ground of the demurrer.
As to all other grounds, the demurrer was properly overruled.
Reversed, rendered, and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.