Shockley v. Christopher

DOWDELL, C. J. This is a bill to foreclose a mortgage. A demurrer was interposed which was overruled, [142] and from the decree overruling the demurrer, the present appeal is prosecuted. The bill is exhibited in the name of Susan A. Christopher individually, and as executrix of the last avüI and testament of Wiliam A. Christopher, deceased. The bill shows that the mortgage sought to be foreclosed was executed to William A., and in his last will he bequeathed all of his personal property to his wife, Susan A., and made her executrix of his will. Under the principle laid down in Kyle v. Perdue, 87 Ala. 423, 6 South. 296, the bill was not objectionable on the ground of misjoinder of parties complainant. See, also, Owen v. Bankhead, 76 Ala. 148. Indeed, what is said in brief of counsel for appellant as to this ground of demurrer can hardly be considered as an insistence. It is averred in the bill that the annual interest on the mortgage debt was paid down to and including the year 1901, and it appears that the bill was filed within 10 years of that date. In the case of Bailey et al. v. Butler, 138 Ala. on page 156, 35 South. on page 112, it was said by this court, speaking through Sharpe, J.: “The statute of limitations does not operate to prevent the foreclosure of a mortgage on lands. It is only when the mortgage debt has been due for a time sufficient to raise a presumption that the same has been satisfied that mere delay will furnish a defense to a bill for such foreclosure, and that time is ordinarily 20 years”—citing Coyle v. Wilkins, 57 Ala. 108; Cook v. Parham, 63 Ala. 456; Goodwin v. Baldwin, 59 Ala. 127; Ohmer v. Boyer, 89 Ala. 273, 7 South. 663. In the case of Ohmer v. Boyer, 89 Ala. 274, 7 South. 663, the last headnote reads: “The foreclosure or enforcement of a mortgage is. not barred by lapse of time less than 20 years, in the absence of an actual adverse possession by the mortgagor, or those claiming under him, brought home to [143] the knowledge of the mortgagee, and the same limitation applies to an equitable assignee, who, having paid the debt, seeks to be subrogated to the rights of the mortgagee as against the heirs of the mortgagors.” There was no error in overruling the demurrer on the stated grounds of laches and statute of limitations. The bill avers that the respondent Wise had purchased the equity of redemption of the mortgagors or claimed some interest in the lands. Under this averment, the bill was rendered sufficient as against attack on demurrer for misjoinder of these defendants, and the ground of demurrer taking the objection for the misjoinder of these defendants was properly overruled. — ■ See rule 106, p. 1562, Code 1907, vol. 2, Chancery Practice. We find no reversible error, and the decree appealed from will be affirmed. . Affirmed. All the Justices concur, except McClellan, J., not sitting.