Marlowe v. Benagh

STONE, J. The bill in the present case was filed to establish and foreclose a mortgage, alleged to have been made by Battle, January 4th, 1870, to secure a debt to Mrs. Benagh, therein described. Marlowe and wife, charged to be mortgagees of the same property, were properly and necessarily made parties. A debt to Mrs. Benagh was a fundamental fact, to uphold the mortgage, and the bill for its foreclosure. The existence, description, and amount of that debt were averred in the bill. Marlowe and wife controverted complainant’s right to recover, and to a first lien — hot on the ground that the alleged debt was not justly owing and unpaid ; nor on the ground that Battle had a homestead in the premises, which was not conveyed by the mortgage to Mrs. Benagh, but was conveyed by the mortgage to Mrs. Marlowe.—McGuire v. Van Pelt, December term, 1876. The defense was vested on the ground, that the mortgage to Mrs. Benagh, of January 4th, 1870, was cancelled, a mortgage made to Mrs. Marlowe, bearing date January 4th, 1871, and [327] a second mortgage — all on the same property — made to Mrs. Benagh, bearing date January 5th, 1871. The real subject of contestation was, whether the first mortgage, that of January 4th, 1870, had been cancelled by authority of Mrs. Benagh. On this central controversy much testimony was taken, and it bears evidence of very deep, if not acrimonious feeling. The chancellor decreed in favor of complainant, settling every question in the cause, except the question of a small amount of usury, and the amount due complainant on her note. That decree was final; and after its rendition, an appeal was prosecuted to this court, and the chancellor’s decree in all things affirmed. —See Marlowe v. Benagh, 52 Ala. 112. All questions theretofore decided by the Chancery Court, and affirmed by this court, were thereby placed beyond the power of the chancellor to review; and even beyond the power of this court to reconsider, coming before us as the present questions do. The case was not remanded on the former hearing, but remained open in the court below, simply for the purpose of ascertaining the several amounts due, and of executing the decree. We agree fully with the chancellor, in holding that, in the state in which the case then stood, the petition filed could not be entertained. Its object was to retry the cause on the merits, and on grounds which, if they exist at all, ought to have been pleaded and tried on the first hearing on the merits. It would be subversive of fundamental rules, to allow a defendant to experiment with one defense on the merits, through all the stages of pleading, evidence, and final decree— yea, of affirmance in this court; and, failing in that, to permit such party, by petition, to introduce and have a second trial, on another defense, equally meritorious with the first, which, if true, existed and was known before the bill was filed. Such is not the office of a petition.—See 2 Dan. Ch. Practice, § 1603; Cowles v. Andrews, 39 Ala. 125. We do not wish to be understood as affirming that the defense, if made in the first instance, would have availed any thing. There was nothing in the claim of homestead. — See Miller v. Marx, and Watts v. Burnett, at Becember term, 1876. And the proof tends to show that no injury was done Mrs. Marlowe by the release of the mortgage on the Perkins place. We have noticed all the questions that are before us, and we find no error in the decree of the chancellor on the petition. Affirmed.