McGowan v. Branch Bank at Mobile

60LDTH WAITE, J. — 1. We propose to consider the errors assigned here, in the order in which they are supposed to have occurred, in the course of the proceedings. The objection to the publication, under which one of the defendants was before the Court, is, that one mortgage only is stated as the substance of the bill, and even that is improperly described. The 17th rule is of the same nature as the statute regulation, directing a copy of the bill to be served with the subpoena, (Clay’s Digest, 351, § 34.) Both were intended to advise the defendant, of the description of the suit against him, but a mistake in the copy, or brief of the bill, or even its entire omission, does not give him a right to reverse a decree otherwise free from error, if the service, or publication, is in other respects in accordance with the statute. This is in direct analogy to civil causes, in which the omission to leave with the defendant a copy of the writ, is no cause for abating the suit, though such a copy is directed by statute. 2. Another objection to the publication is, that it requires the defendant to appear and answer the bill on the 1st of February, when the prayer of the bill is, that he shall answer at the next term of the Court; which term did not commence until after the day named. We are unable to comprehend the force of this objection, if it has any, and consider the time in the prayer as wholly immaterial; and that in the publication, only so, as informing the defendant when he must answer. Certainly he is not prejudiced, if the day named is a proper one, and no pro confesso, is taken until it has passed. The objection does not go to the time stated, but to the discrepancy between the prayer of the bill and the publication, and this we consider as presenting no available error. 3. There is, however, a fatal objection to the decree,without reference to the form of the bill. It refers to, and is founded entirely on, the master’s report. That ascertains debts to be due, which are not covered by the bill, and those which are so covered, are entirely omitted. The consequence is, that a [827] decree is rendered, which, on its face, appears to be wholly disconnected from the case made by the complainant. It generally is true, where a party to a bill is required to be present, when an account is stated, and he omits to except to it at the proper time, he will be concluded from afterwards raising objections to it. [Levert v. Redwood, 9 Porter, 79.] But this rule is inapplicable, when the report is solely upon matters not included in the reference, nor covered by the pleadings. [Levert v. Redwood, 9 Porter, 79 ; Adams v. Claxton, 6 Vesey, 226; brodie v. Barry, 1 J. & W. 470.] By a reference to the bill, and to the report, it will be seen that the notes described in the one, are not the same, nor indeed, have any resemblance to those set out in the other. 4. The other errors insisted on arise, as is contended, out .of the bill itself, and the first we shall notice, is as to its uncertainty. It is very justly considered, that many objections to a bill which would be fatal if taken on demurrer, are of no weight whatever, if made for the first time in an appellate tribunal; and the English rule is, that points not raised in the Court below, cannot be argued in the House of Lords. [McDonald v. McDonald, 1 Dow, 463.] The reason is, that the defect in the Court below, may be cured by an amendment, which cannot be done in the other Court. Another reason, too, not without its force, in most cases, is,, that generally speaking, the evidence in the cause, enables the Court to see, to which of the repugnant, or uncertain allegations, the relief should be applied. It is evident, when the bill is taken for confessed, that the case is no more certain than it was before, unless the course of practice compels the complainant, in such a condition of the suit, to support his allegations by proof. In this case the uncertainty is, whether the mortgage first described in the bill was executed by McGowan alone, or by him and his co-defendant, Taylor. Now, when it is said the mortgage and the notes described in the bill, were produced and proved, we are not a point nearer certainty,than we would be without them, as we still do not know, whether it was executed by one or by both. Although we are strongly disinclined to sustain an objection of this nature, at this stage of a cause, it seems to fall within the rule recognized in the previous decisions. [Hartwell v. Wilkins, 6 Ala. Rep. 581.] [828] It is, perhaps, unnecessary to remark, that the reversal for an error like this would carry no costs. 5. There is nothing in the power of sale given by this mortgage, which deprives a Court of Equity of its jurisdiction. The circumstance, that, when the power is conferred on the mortgagee, he, as trustee, may be incapable of becoming a purchaser, is almost conclusive, as a reason, why the jurisdiction should be preserved, as from this, it is certain, the remedy under the power is not so full and ample as it is by a decree. x\ll the authorities concur, that the jurisdiction of equity exists, as wei where there is a power to sell, as where there is none. 6. The only other objection we shall consider,is more general in its character. It is asserted, that inasmuch as there are different mortgagors to the two deeds of mortgage, they cannot be joined in the same suit, but that a separate bill, for the foreclosure of each is necessary. This proposition may be true when the debts, as well as the mortgages, are distinct; but here they are for the same debt, and therefore there is no pre-tence for several suits. Indeed, it may be questionable whether these defendants are not necessary parties, in a suit to foreclose either mortgage. How otherwise, if questions as to priority, or contribution, should arise, are they to be determined? But,independent of these questions, with which the complainant has no concern, in the first instance, there is no reason why he should be forced to pursue two suits, when one is sufficient, and no more, to enable him to obtain his rights. We think there is nothing in this objection. 7. The complainant, as before observed, has nothing to do in the first instance, either with the apportionment of his debt between the several mortgagors, or in the marshaling of the sale of the mortgaged estate. By the contracts, all of it is liable to the satisfaction of the debt, and if there is any reason, why one portion of the property should be sold sooner than another, it was for the defendants to disclose it. The apparent relation between them, as maker, and indorser, may not exist, or may be countervailed by some agreement. The Court of Chancery was not obliged so to shape its deciee, as to produce effects which, when produced, might not have been accordant either with the wishes, or the contracts of the parties. On the whole, we think there are no errors in the cause, oth [829] er than those we have ascertained. As to those questions not examined, we have declined to express any opinion, for it is scarcely possible they can arise again in the suit. The decree is reversed and the cause remanded, that the bill may be amended or dismissed.