Hooper v. Birchfield

DOWDELL, J. The bill in this case was filed by the appellants, Hooper & Nolen, to enjoin the execution of a judgment at law recovered by the appellee, Birch-field, against H. A. Lamberth and W. A. Jones, and at [427] the same' time to foreclose two mortgages executed by tlie appellee to the appellants. The cause Avas submitted for final decree on the pleadings and proof, and on motion to dismiss the bill for want of equity and to dissolA7e the injunction. A final decree was rendered dissolving the injunction and dismissing the bill, and from this decree the present appeal is prosecuted. The complainants were not parties to the suit in AAdiich the judgment sought to be enjoined was rendered but were strangers to that suit. A bill to enjoin proceedings at laAV must be filed in the name of an interested party. But if it had been filed in the name of a proper party, it fails to make a case for an injunction of a judgment at- laAV. It states no excuse or reason for allowing tlie suit to proceed to judgment or for the failure to take steps to prevent it. A defendant having equitable defenses to an action at laAV of which he is at the time apprised should not Avait until such suit has proceeded to a judgment, before applying to a court of equity for relief by injunction. — Moore v. Faggard, 51 Ala. 525. The bill, hoAvever, is clearly without equity as a bill for foreclosure of the mortgages mentioned. These complainants’ are shoAvn by the statement in the bill to Imre parted Avitli all of their interests in the mortgages. As mortgagees in the possession of the land, long after the laAA~ day in tbe mortgages, they conveyed by deed of Avarranty the lands embraced in the mortgages to Lam-berth and Jones. This conveyance operated an assignment in equity of the mortgage debt. — Welsh v. Phillips, 54 Ala. 309; Taylor v. A. & M. Association, 88 Ala. 229; Cook Admr. v. Parham, 63 Ala. 456. By their conAmyauce to Lamberth and Jones they parted both with their legal estate in the lands and their equitable rights in tbe mortgages. There is no error in the decree and the same will be affirmed. Affirmed.