Jenkins v. Jonas Schwab Co.

SHARPE, J. This suit was begun by a bill filed under tlie statute (Code, §§ 809-813), which under given circumstances authorizes the filing of a bill to compel the determination of claims to real estate and to quiet the title to the same. The defendant answered that upon the lot described in the bill, it held a mortgage executed by complainants together with certain notes given by them contemporaneously with the mortgage, and by a cross-bill it prayed for foreclosure of the mortgage. A motion to strike out the cross-bill and a demurrer to same were overruled, and complainants answered the cross-bill setting up that at the time of the transaction in question, they were married men and the lot was their homestead; that execution of the mortgage was not acknowledged by the wife of either of them, before any officer competent to take the separate acknowledgment required by the statute in respect of such conveyances; that the notary public whose certificate purports to show such acknowledgments were made, was a stockholder and an officer in the mortgage company and was, therefore, disqualified to act in taking the required separate acknowledgments. A jury trial was had under the provisions of the statute, and the verdict therein rendered established as true the averments of fact contained in the answer to the cross-bill. The motion to strike the cross-bill and the demurrer to same were properly overruled Though the jurisdiction invoked by the bill is statutory, there is nothing in the statute or elsewhere which in cases brought' under such jurisdiction, precludes those who- are made defendants therein to seek affirmative relief by cross-bill according to the usual chancery practice. — International B. & L. Assn. v. Stocks, 124 Ala. 109; Cheney v. Nathan, 110 Ala. 254. The original bill drew in question the existence and extent of defendant’s claim to the lot and the cross-bill, being founded upon the same subject matter and seeking only the -enforcement of that claim, did not involve a departure from the original case.- — Newago, etc. Co. v. Stevens, 79 Mich. 398. [668] Under the facts as found by tbe jury, tbe mortgage was invalid and was subject to be so treated upon a direct attack. — Monroe v. Arthur, 126 Ala. 362; Fearn v. Beirne, 129 Ala. 435; Hayes v. Southern B. & L. Assn., 124 Ala. 663. The statute under which the suit was brought gives a remedy for the determination at the instance of a person in possession of land, every claim of interest adverse to his ownership. Bince the mortgage constitutes the claim propounded for adjudication in response to the bill it is under a direct attack and its invalidity having been so brought to view by the pleadings and verdict, no decree for its enforcement should have been rendered. In the chancellor’s opinion it seems to have been assumed that there was a cash consideration for the mortgage which complainants should have offered to restore while insisting on cancellation of the mortgage. It is true that the maxim “he who seeks equity must do equity” is of general application to cases in equity including those brought under the statute for quieting title. — Hart v. Smith, 44 Wis. 213; Benson v. Shotwell, 87 Cal. 49; 17 Ency. Pl. & Pr. 370. If it be true that on the faith of the mortgage complainants obtained money or other things of value, they are not entitled to cancellation of that instrument except on making compensation for what was so obtained. — Hayes v. Sou. B. & L. Asso. supra. The record, however, is silent as to the character of the consideration of the notes and mortgage. Prom all that appears the consideration may have consisted entirely of- a past due indebtedness, and hence there is now no room for application of the maxim. The decree will be reversed and the cause remanded, and should the cause be thereafter submitted upon the record as it now stands, the mortgage will be unconditionally subject to cancellation. Reversed and remanded.