Junkins v. Lovelace

STONE, J. This bill is filed in rather a mixed aspect, partaking somewhat of the nature of a bill for specific performance, and somewhat of the nature of a bill to redeem. It seeks relief as to two distinct subjects-matter, between which it shows no connection whatever. As to one of the subjects, the two Lovelaces are the only necessary defendants. As to the other, in the present state of the proof, if not of the pleadings, the heirs and devisees of James Junkins were necessary parties. The demurrer for multifariousness should have been sustained. [308] Story’s Eq. PL §271; 1 Brick. Dig. 719-20, §§1158,1170. But, if the demurrer for this ground had been sustained in the court below, we approve the practice of putting the complainant to his election.—Marriott v. Givens, 8 Ala. 694; Code of 1876, § 3790. One phase of the relief prayed relates to the land mortgaged by James Junkins to the appellees, Lovelaces. James Junkins had made a prior mortgage of the same land to George Jun-kins, but the latter had given his written consent that the Lovelace mortgage should have a prior lien over his. It is claimed that some six hundred dollars, besides interest, still remains due on the mortgage to George Junkins, and that the Lovelaces, from the rents and profits of the mortgaged premises, which they have had since 1874, have been fully paid all that was due them, as secured by the mortgage of James Junkins. As part and parcel of the right to redeem this land, it is averred that, under a .decree of the Chancery Court of Greene county, title of the James Junkins land had been made by the register to George Junkins; thus vesting in George all the rights of James Junkins, subject to the mortgage claim of the Lovelaces. ‘ To authorize the register to sell and convey the lands of James Junkins, there must have been a regular foreclosure suit by George Junkins, making James Junkins a party defendant, if in life; and making his heirs defendants, if after his death; and there must have been a decree of sale, when there were proper parties before the court. Less than this could not devest the title of James Junkins, or his heirs, as the case may be; and, consequently, could not clothe George Junkins with the title of James. The averments of the bill do not sufficiently set forth these proceedings; and the proof is, if any difference, more faulty than the averments. This feature of the case, then, must be disposed of, as if no attempt had been averred, or shown, having for its object a foreclosure of the mortgage to George Junkins. It results that, in the most favorable light to George in which we can view this question, he comes simply as a mortgagee, to foreclose the mortgage of James Junkins, and to redeem from the Lovelaces. Thus viewed, the bill is fatally defective, in that it does not make the representative and heirs or devisees of James parties defendant ; and if they were made parties, there would then be an entire absence of legal proof that there is any thing due on the mortgage. George Junkins, the only witness whose testimony tends to prove such indebtedness, would be rendered incompetent to testify to any transaction with James, his deceased brother; and the testimony of Beck tends to show nothing was due on the two notes described in the mortgage, unless a third note, possibly given in settlement, should be produced, or oth [309] •erwise proven. The testimony of Beck opens the door for such testimony. The appellant is entitled to no relief on this phase •of the bill. The other phase of this suit grows out of mortgages made by George Junkins to the Lovelaces, conveying another tract •of land, known as the George Junkins tract, to secure the payment of George Junldns’s debt. When the mortgage was made, in the early part of 18T4, the debt secured by it was a balance for previous advances of §1,460, and it also secured advances to be made that year. In January, 1876, the balance due for previous advances was $1,168, and a mortgage was made to secure advances to be made that year. In 1875, Webb and Beck severally recovered judgments against George Junkins, the two amounting to some $500. Under executions issued on these judgments, the said mortgaged lands of George Junkins were .sold by tire sheriff in the early part of the year 1876, and Webb and Beck became the purchasers of the equity of redemption, for about the amount of their judgments. When this purchase was made, and the sheriff conveyed to Webb and Beck, Junkins •ceased to have any interest in the lands, and ceased to have any right in relation thereto, except the mere statutory right to redeem within two years, from the execution purchasers. If he had exercised this statutory right, and had redeemed from Webb and Beck, he would then have been restored to his former ownership of the equity of redemption, and the relation of mortgagor and mortgagee between him and the Lovelaces would have been re-established. lie failed to redeem, and hence lost the title to his lands. In 1879, the Lovelaces, for a valuable consideration paid, received from Webb and Beck a conveyance of all the interest they had in the said George Junkins tract of land, and thus united in themselves the mortgage interest and the equity of redemption, being, at law, a complete title.—Br. Bank v. Hunt, 8 Ala. 876; Lovelace v. Webb, 62 Ala. 271. The allegations of the bill, on which a recovery of the George Junkins land is sought, are, that the Lovelaces redeemed the land from Webb and Beck, for the' said George Junkins, and were to hold them for him, and convey to him, when he paid up the redemption money, and the balance of the mortgage ■debt. The bill then avers that these sums have been paid to the Lovelaces, and offers to pay any balance, if not paid in full. The answers deny that the lands were redeemed from Junkins, and deny the making of any contract or agreement, by which they obtained the title from Webb and Beck for the benefit of Junkins, and deny that they agreed to convey to Junkins when he paid the purchase-money and the balance of the mortgage indebtedness. All the testimony offered in support of the alleged agreement to redeem, and to reconvey to Junkins when [310] he paid up, is the deposition of Junkins himself. If such agreement was made, it was oral, and the bill contains no aver-ments to take it out of the statute of frauds. It is neither averred nor proved that Junkins, after the sheriff’s sale, or after the alleged redemption, had possession of the lands. Hence, if he made payments, there is not enough to show the case was-taken out of the statute of frauds.—Code of 1876, § 2121, sub. 5; Patton v. Beecher, 62 Ala. 579. There are some implications from the testimony, that he did have a possession or control of the land, or a part of it, but that it was as tenant under the receiver. There are no averments, however, to give this any force. A complete answer to any claim of relief, based on the alleged agreement to redem, is that the proof does not sustain it. We find, as fact, that this averment is not proved; and hence there is a failure to establish even an oral agreement by the Lovelaces to redeem the land from Webb and Beck, and hold it to be redeemed by Junkins. It is thus shown that, under the averments of this bill, the complainant is entitled to no relief as to the lands formerly owned by him. If there is any proof, tending to show a right to relief on any other ground, it is variant from the allegations of the bill, and it must be denied on that ground. — 1 Brick. Dig. 743, §§ 1538-9. We have not scrutinized the accounts narrowly, and can not safely say there is or is not such proof. It is contended for appellant, that after the sale by the sheriff of the equity of redemption to Webb and Beck, Jun-kins, the mortgagor, made payments on the mortgage debt, thus reducing the incumbrance created thereby; and inasmuch as such payments do not enure to the benefit of the purchaser of the equity of redemption, and could not have relieved Webb and Beck from any part of the mortgage incumbrance which rested on the land when they purchased, the Lovelaces, by their purchase, acquired no greater rights than Webb and Beck had owned, and passed under the same liabilities which had rested on their vendors. On this principle it is urged, that Junkins, to the extent he has so reduced the mortgage incumbrance,, should be subrogated to the rights of the mortgagees.—Tice v. Annin, 2 Johns. Ch. 128. There are no averments in the bill which raise this question,- and no relief can be granted, even if it be-shown in the testimony. As we have said, we have not scrutinized the accounts in reference to it; but we will so far modify the decree as to make it a dismissal without prejudice. Thus amended, the decree of the chancellor is affirmed.