Batre v. Auze's heirs

GOLDTHWAITE, J. The principal question in this case, and the only one which involves the equity of the bill has not been discussed by the counsel for the plaintiffs in error; and whether it is considered as a mooted question, or otherwise, we ought not to decide it, if the other points made are sufficient to reverse the decree. [177] ' 1. The first matter urged for our consideration is, that the defendant, Lefebre, was not properly before the court, so that any decree could be made affecting his rights. It will be seen that there was no personal service of the subpoena on him, and he is attempted to be brought before the court as a non-resident defendant. The consideration which the statute governing the mode by which this class of suitors are to be brought before our courts of chancery, has recently received, in the case of Erwin v. Ferguson, supra, renders it unnecessary here to say more than that we consider the service as defective, because it docs not appear that any publication was made on the .court house door, as the statute requires, as well as in a newspaper. [Digest, 289, § 23.] 2. In avoidance of this defect in the service, it is urged that Le-febre was not an indispensable party to the bill, and as no decree is rendered against him, the error is entirely immaterial. The case made by the bill is very similar in all its analogies to a mortgage; indeed the lien of a vendor for the purchase money is considered as an equitable mortgage by the elementary writers. In the relation which Lefebre stands to the land, having parted with all his interest to Batre, by sale and conveyance, it is certain he is not an indispensable party; but it is equally certain we think, that he could be joined as a defendant at the election of the plaintiff. It might be important to have him before the court for the taking of an account, or in order to conclude him by the decree, as was held in Brooks v. Harrison, [2 Ala. Rep. N. S, 209.] It is true, in that case, we considered a party standing in a somewhat similar relation to the case, as an indispensable party, but the facts were peculiar, and seemed to make an exception to the general rule. In the present case it may be conceded that the decree is not against Lefebre, personally, but we conceive its effect is such as conclude him from setting up any defence if a suit should be instituted against him by Batre’s heirs. 3. The consequence is, that the complainants cannot now say that it was useless for them to bring him before the court, because the election was with them to make him a party, and if not a necessary one, they could at any time have dismissed him from the suit It is not for us to speculate how the decree will affect this defendant; it is sufficient that under certain circumstances it may do so. [178] 4. With respect to the supposed interest of Adolph Batre, disclosed, by the answer of the executrix of Charles Batre, it is sufficient to say, that however asserted, no such interest was shown at the hearing, and therefore, without any enquiry into the necessity for making him a party upon the case made by the answer, this matter cannot avail the defendant here. 5. The fact being ascertained that one of the defendants was not before the court at the time of the decree, it follows, so far as he is concerned, there is no waiver of the irregular manner in which the suit was revived after the death of the original complainant, Auze. The proper mode to revive the suit was by bill of revivor, on the part of those entitled at his death to his interest in the estate. [Heirs of Duval v. McLoskey, 1 Ala. Rep. N. S. 708.] The amended rules now permit a revival in another mode, but they cannot have the effect to cure the error in this case. We are not prepared to say that if all the defendants submit to proceed after an irregular revival of a decree, that they would be heard against the irregularity. 6. It is further urged, that independent of the manner in which suit was revived, the heirs of Auze are improperly joined as complainants, with his personal representatives. In the case of Erwin v. Ferguson, supra, we had occasion to examine the subject of parties to bills of this description, and then came to the conclusion that the heir of a joint mortgagee was not an indispensable party to'a bill to foreclose or sell, inasmuch as he had no legal or equitable interest in tire debt secured by the mortgage. We also examined the English rule as laid down by Mitford, and endeavored to show that it never had prevailed in the American courts. As this is the case of a mere equitable mortgage, there can be no pretence that the heirs of Auze have any equitable interest in the debt, and they certainly have no apparent legal interest in the land. The consequence is that they are improper parties and if the objection had been taken on demurrer, their names would have been stricken from the bill on an order to amend. The objection is too late upon error. [Erwin v. Ferguson, supra.] 7. It is also urged that no reason is shown by the pleadings, why the executrix of Charles Batre, and not his heirs at law, are made parties upon the revival of this suit. It is held by all the authorities, that where a mortgagor, who is the owner of the fee, dies, his heir or devisee, is an indispensable party to a bill to fore [179] close; so much so, that if he is Avithout the jurisdiction of the court, the cause cannot be further proceeded in. [Story’s Eq. Pl. 181, § 196.] It is not the mortgagor here who is dead, but the person who is invested with all his interest. The analogy therefore is, that his heirs are indispensable parties, unless it is showm affirmatively that they have no interest in consequence of an assignment or devise by their ancestor. The omission of a party, who is indispensable to a bill, is a defect which will cause a decree to be reversed, on a rehearing, or appeal. [Story’s Eq. Pl. 77, § 75; Mechanics Bank v. Seton, 1 Peters, 299.] But notwithstanding such an error is sufficient to work a reversal, the bill ought not to be dismissed until an opportunity is given to make the proper parties. [Story’s Eq. Pl. 415, § 541.] These conclusions render it necessary to reverse the decree and remand the cause, and relieve us from the consideration of the other questions presented, it being probable they will not again arise.