Blake v. Anniston City National Bank

SAYRE, J. As we said on a former appeal in this case (Douglass v. Blake, 189 Ala. 24, 66 South. 617), appellant’s bill in this case, though partaking of the nature of a cross-bill, is an original bill of intervention, asserting equities entirely independent of the claims of the parties to the original cause between the Dickies on one hand and Thrasher and others on the other. In the report of the case in 189th Alabama there appears a statement of the case which need not be repeated. The purpose of appellant’s bill was to have decreed a foreclosure of the mortgage made by the Dickies to him, and by him hypothecated with the [612] bank to secure his note to the bank, and collateral securities released and restored to him. In other words, as the chancellor has stated, appellant has sought to redeem his collateral to the end that he may have a foreclosure of the same. Appellant has alleged that the title to his collateral — so to speak of the Dickie notes and mortgage he pledged with the bank — was revested in him by a tender of the amount of his indebtedness to the bank, said tender having been made to Costello, who is alleged to have held the collateral at the time under a transfer from the bank; but it appeared in the pleadings filed by defendants, and the proof was without conflict to the effect that, though complainant may have been misled into believing that Costello had title to the. collateral, he had none; that the bank’s assignment was to Douglass, to whom Acker had furnished the money to buy appellant’s note and its security from the bank with the understanding that they were to be held for him (Acker) until Costello, who was helping the Dickies, should refund to him their purchase price; that this was done before appellant’s bill was filed.; that after appellant’s bill was filed Acker, failing to get his money from Costello, foreclosed the mortgage, himself becoming the purchaser, and this was the status of things when appellant’s bill was filed. It thus appears without controversy that, at a time when neither Acker nor Blake were parties to any suit concerning the property and there could be no question of lis pendens in favor of one against the other, Acker acquired an interest in the subject of controversy, a title, superior to that of Blake. (1, 2) The situation then is that appellant seeks to redeem and foreclose a mortgage held and owned by Acker when appellant’s bill was filed, and since foreclosed by him, without making Acker a party. It is quite clear, as the chancellor held, that in these circumstances-the court was without power to make any final and effective decree, foreclosing the mortgage or disposing of the property. There may be reasons why Acker would be estopped to assert his title, as appellant urges; but such estoppel, if any there be in the facts, cannot be asserted or enforced against him in his absence and without a hearing. The ultimate relief sought by appellant is that he may be put in a position to foreclose his mortgage against the Dickies, and that his mortgage be foreclosed. On the undisputed facts this relief cannot be made effectual by a decree against Douglass and Costello. The last named never acquired any interest whatever in the mortgage, [613] and, to quote the chancellor’s opinion, “Douglass was a mere conduit of the legal title, and while a necessary party for that reason, his merely nominal title will not, in a court of equity, dispense with the presence of the party who owns the substance, while Douglass owned the shadow.” Nor does it alter this complexion of the case that Douglass or Costello, one or both, may have deceived appellant as to the whereabouts and ownership of the Dickie mortgage when he went to redeem by a tender of the amount of his original indebtedness to the bank, as appellant alleges.. If they did any actionable wrong, appellant’s remedy as against them was by an action at law. Thus, without taking issue with the several propositions of law stated in the appellant’s brief further than to say they can avail him nothing in the absence of the owner of the subject of the controversy — a defect In the record which appellant had opportunity to correct before the submission for final decree — we are in agreement with the chancellor that appellant could have no relief on the bill filed by him. Affirmed. Anderson, C. J., and McClellan and Gardner, JJ., concur.