Eslava v. Lepretre , 21 Ala. 504 ( 1852 )

LIGON, J.

— In settling the law arising upon the assignments of error in this case, we will first consider those which involve points of pleading and practice; and then, those that affect the merits of the controversy between the parties.

The three first assignments relate to the proceedings against Mrs. Eslava, who is shown by the bill to have been non compos mentis when it was filed, and under the guardianship of Dumie and Mazange. The order appointing the guardians was made by the judge of the County Court of Mobile, on the day of , upon the petition of Miguel D. Eslava, who represented that his wife was nan compos mentis; that prudence and necessity required him to dispose of a portion of bis real estate; and that to cause it to bring a fair price in the market, it would be necessary to disencumber it of the dower of bis wife; and as slie was non compos mentis, and could not relinquish it, he prayed that guardians might be appointed with full power to do so. On this petition, a general order appointing Dumie and Mazange guardians was made by that court.

This appointment was made upon no other assurance of the fact of Mrs. Eslava’s lunacy than the petition of her husband, without notice to her, and without the issue of a writ de lu-nático inquirendo, and the verdict of a jury thereon. Without the issue of this writ, and the finding of a jury, the County Court judge had no power to declare her a lunatic, or to appoint a guardian for her. These proceedings are indispensable to give the County Court jurisdiction to make the appointment; and as they were not had, and that court is one of limited jurisdiction, the proceedings on the appointment of guardians are coram non judice and void. Such being the case, they may be impeached in any court, in a collateral proceeding, in which a party seeks a benefit under them. Weightman v. Karsner, 20 Ala. 446 ; 10 Peters 449 ; 13 ib. 511; 6 Wheat. 119; 3 How. U. S. R. 762; 5 Hill N. Y. 568; 11 Wend. 652 ; 8 S. & M. 521; 16 Vermont 251.

There is no order of the County Court of Mobile, declaring Mrs. Eslava a lunatic, or person non compos mentis. The nearest approach to it is found in the recitals of the order appointing the guardians, and these are wholly insufficient for that purpose. Neither does the record show that she had any notice whatever of the proceedings. They were ex parte, and are consequently null and void. McCurry v. Hooper, 12 Ala. 823; 5 Pick. 219; 14 Mass. 222.

In the case of McCurry v. Hooper, supra, it was well observed by the judge delivering the opinion of the court: “I think it is a fundamental principle of justice, essential to the right of every man, that he should have notice of any judicial proceeding which is about to be had, for the purpose of divesting him of his property, or the control of it, that he may appear and show to them who sit in judgment on his rights, that he has not lost them by the commission of a'crime; and that they should not be taken away from him by reason of a supposed misfortune. That he has the right to appear before the jury and the court, to show that he is not insane, and that he and his property should not be put in charge of another, is a self-evident truth, and is denied by no legal authority.” If this were not so, oppression the most unholy might be visited upon the unsuspecting victims of the cupidity or malice of others, under the forms of law; and the writ of inquisition authorized by the statute would become indeed inquisitorial in the most offensive sense of that word.

The statute conferring power on that court over this subject is in these words: “It shall be lawful for every Orphans’ Court within this State, where any idiots or lunatics shall be within the jurisdiction thereof, to appoint them, or either of them, a guardian, taking bonds with approved security, for the faithful administration of the trust reposed in such guardian, in the same manner as bonds are taken from the guardians of orphans; and such guardian, when so appointed, shall continue during the pleasure of the court, and shall have the same power, to all intents and purposes, and shall be subject to the same rules, orders and restrictions, as guardians of orphans are: such lunacy being ascertained by the inquisition of a jury, by virtue of the writ to be issued by the court to the sheriff of the county for that purpose.”

“ Inquisitions as to idiots, lunatics, and persons non compotes •mentis, may be ordered in vacation, or in open court, and made returnable as process of citation. On sufficient cause shown, • the judge may order such inquisition to be had before him: in other respects, the same proceedings shall be had thereon as heretofore.” Clay’s Dig. 302, §§ 29-30. The last section refers to proceedings under the act of 1806, which required a jury of twelve men from the vicinage of the supposed lunatic to be impanneled by the sheriff, a majority of whom might render a verdict without the presence or sanction of the County Court; and which did not authorize such judge to order the inquisition to be had before himself. It does not dispense with the jury, but authorizes the judge, for good cause shown, to have the writ returnable before himself, and the jury to make the inquisition under his supervision and direction.

As the fact of the insanity of Mrs. Eslava had not been ascertained by the Orphans’ Court of Mobile, and as it was suggested alike in the bill of complainant and the answer of Miguel D. Eslava, the Chancellor should have allowed no further proceedings in the case as to her, which could by possibility affect her rights or interest, until he had inquired into the fact of her lunacy. This he had ample power to do, without directing an issue at law for that purpose. Alexander v. Alexander, 5 Ala. 517. If, on such investigation, she should be found non compos mentis, he should have appointed a committee or a guardian ad litem to watch over her interest and defend her rights.

Again, her right of dower, if any she had, in the premises conveyed by the first mortgage to Lepretre, formed an incum-brance on the fee which that deed purported to convey, and would tend to becloud the title, and consequently might well cause the lands to sell 'for less than their true value. To prevent this result. Eslava, as mortgagor, and the holders of the mortgage made after those to the complainant, as well as Ma-zange, the purchaser of the equity of redemption under all the mortgages, are deeply interested; and notwithstanding Mrs. Eslava is allowed a day by the statute to come in and review the decree, after her coverture and disability arising from lunacy have ceased, yet the decree of the court against her right to dower would give confidence to purchasers, and go far to cause the mortgaged premises to sell for their full value. To enable the court to pass on her right, she might properly be made a party, especially on the suggestion of Eslava in his answer; or by the complainant himself, who is interested in making the mortgaged lands bring the amount of his debt. It is evident, from the record in this case, that the Chancellor regarded and treated her as a party to the case in the court below, even in his final decree, and this renders it important to consider whether she was really such under the rules of practice which govern that court; and if she has not been rightly brought in, has the irregularity been waived by her, or by the defendants who have an interest in her becoming a party. That the latter is not the case, admits of no doubt.

It results from what has been said, that Dumie and Mazange, though parties to the original and amended bills of the complainant, were not the legal representatives of the rights and interest of Mrs. Eslava; and as neither bill is so framed as to make ber individually a party, the Chancellor erred in proceeding to a final decree until she was properly brought in. That she was a proper party is abundantly shown by both the original and amended bills, as by each it is sought to subject her dower interest, in the lands mentioned in the two deeds of mortgage, to the payment of the debts secured by them. To the first deed she appears as joint mortgagor with her husband, which is so acknowledged as to pass her dower estate in the land; and to the second, Dumie and Mazange assume to act as guardians, and to pass her interest in the premises by joining with Miguel D. Eslava in its execution.

In neither bill is there any prayer for process against her; but process is prayed for, issued, and executed on Dumie and Ma-zange as her guardians, and on the original bill a decree pro confesso was taken against them in that character.

It is contended, however, that she is not entitled to dower in the lands mentioned in the first mortgage, and consequently was not a necessary party to a bill filed to foreclose it. To this it may be replied, that she was joint mortgagor with her husband, and is charged to be a joint debtor with him, and the complainant, having received a mortgage from her to secure this debt, is not in a situation to excuse his neglect in failing to proceed regularly against her, by setting up her want of interest in the subject of the mortgage; being a party to that deed, she has an unquestionable right to litigate with him the question of her title to the lands conveyed by it. But it is sufficient to say, that complainant considered and treated her as his debtor, and as a party to both mortgages in his original bill, and should have brought her rightly into court, before he could be allowed to proceed further against her.

Nor is this error cured by the subsequent appointment of a guardian ad litem to defend for her. As she was not in court, either on the original or amended bill, by service of process under any rule known to our chancery practice, the appointment of such guardian was irregular, and the answer filed by him could not bring her before the court. If she were in truth non compos mentis, as both bills allege, she could not waive the irregularity herself, and the Chancellor, who is esteemed the jealous guardian of the rights of such suitors in bis court as are deemed incapable in law to protect tbeir own interests, should not have allowed another to do so for her.

The decree pro confesso against Don Gregorio Funes y Mu-nos was regularly taken on notice to him by publication; but as he had not filed an answer, nor in any other manner submitted to the jurisdiction of the court, and as he had received a mortgage on the same lands from Eslava, it was error to render a final decree against him, without requiring the complainant to make the bond provided for by our statute in cases of non-resident defendants who have not submitted to the jurisdiction of the court. Rowland v. Day, 17 Ala. 681; Ewin, Adm’r, v. Ferguson et al. 5 Ala. 158; Clay’s Dig. 853 §45.

The fifth, sixth, fourteenth, fifteenth, nineteenth, twentieth, twenty-first, twenty-second and twenty-fifth assignments of error are not well taken, as the proceedings to which they relate are regular in the court below. The twenty-eighth and twenty-ninth assignments are too general in their character; all assignments of error should point to a particular part of the proceedings of the court below in which the error complained of is thought to exist.

The eighth, ninth and sixteenth assignments may be considered together. We have already seen, that so far as the final decree affects the rights and interest of Mrs Eslava in the mortgage premises, it is irregular, and that it cannot be sustained against Don Gregorio Funes y Munos, as it is absolute in its terms, and he is a non-resident defendant who has not submitted to the jurisdiction of the court. But so far as the parties are concerned who were actually before the court at the time of the rendition of the decree, in form it is free from error. It was held by this court in the case of Tickner v. Leavin’s Ex’r, 2 Ala. 149, that in a case where the defendants are adults, it is not error to decree a sale of the mortgaged premises without ascertaining, by a report of the master, whether the amount due might not have been raised by a sale of a part of the mortgage premises, unless it be suggested that such reference is proper. If the adult defendants stand by, without suggesting that the value of the mortgaged estate exceeds greatly the amount of the debt secured bjr the mortgage, and that the premises are capable of sub-division, and moving for a reference to tbe master to ascertain tbe facts, and report upon tbe subject, tbe Chancellor may well go on and decree a sale of tbe whole; and this, notwithstanding there are two mortgages, as they are between tbe same parties, for tbe same debt, and differ only as to tbe premises conveyed.

A different rule would prevail, if any of tbe defendants were infants, persons non compotes mentis, or, indeed, laboring under any legal disability to appear themselves, and contest tbe matter with tbe complainant. In all such cases, tbe Chancellor will extend to them every protection of which an adult could avail himself by tbe rules which regulate proceedings in courts of equity. Mills v. Dennis, 3 Jobns. Ch. R. 367. If be failed to do so, it would bo error.

It may be, also, that, where there are two mortgages, in favor of different mortgagees, on a part of tbe mortgaged premises, and one only of tbe mortgages extends to tbe other portion, be would compel tbe latter mortgagee to exhaust tbe estate which was exclusively devoted to the payment of bis debt, before he would foreclose, in favor of such mortgagee, as to the premises contained in both mortgages. So, also, if the mortgagor had sold and conveyed his equity of redemption in one parcel, and retained it in the other, the Chancellor would first foreclose and sell that portion in which the mortgagor retained the equity, before he would sell the other. Eor it is well settled, that, where one creditor has two securities for bis debt, and another but one, and that is common to them both, the former will be compelled first to exhaust tbe security which is exclusively his own, before he will be allowed to proceed against tbe one which is common to each. This question, however, does not arise in this case, as tbe mortgage to Don Gregorio Eunes y Munos covers the entire premises described in both tbe mortgages to tbe complainant; and Mazange is the purchaser of the equity of redemption in the whole estate mortgaged. Had tbe parties been regularly before the court when tbe final decree was made, no just exception could be taken to that portion of it which directs a sale of tbe lands if the mortgage debt was not paid by tbe 30 tb of April. It is discretionary with tbe Chancellor to allow time for tbe payment of the sum reported by tbe master to be due. He may, if be will, decree a foreclosure and sale absolutely, without giving day to the mortgagor, and such decree will be free from error. Mussina v. Bartlett, 8 Por. 277.

The sixth, seventh, tenth and eleventh assignments of error may be considered together, as they each have relation to the orders of reference made at different times by the Chancellor. The objection to the decree and order of reference made at the December term, 1850, is well taken, because Deas, who was made a party to the amended bill, was not before the court by service of subpoena, or by service perfected in any other manner whatever,, at the time that decree and order were made. He is represented in the bill as a resident of the State, and the subpoena issued against him is returned not found. It is irregular, in a chancery proceeding, to take any order generally affecting the merits of the case, until it is at issue as to all the parties. This is not excused by the supposition that the party not before the court is not a necessary one; it is enough that he is represented by the bill as having some interest in the subject matter of the suit, and is regularly made a party by proper allegations, and prayer for subpoena to bring him in. The same irregularity extends to the order of reference made subsequently at the hearing.

It is unnecessary to examine the other errors assigned in relation to the points of practice and pleading, as, in almost every instance in which they can avail the plaintiffs in error, they derive their availability from their connection with the irregularities already examined.

As the case must be sent back to the Chancery Court for further proceedings, it may not be amiss to examine the ruling of the Chancellor on the merits.

We fully agree with him, that Mrs. Eslava is not entitled to dower in the lands mentioned in the first mortgage to Le-pretre. It appears that these lots were sold by him to M. D. Eslava, and a deed made to the latter on the same day on which the mortgage was executed; the two deeds were, therefore, contemporaneous acts. “.To entitle the wife to dower of lands owned by her husband during coverture, he must not only be seized, but the land must vest in him beneficially for his own use. He must not be the mere conduit for passing the title to another. Nor is the seizin sufficient, when tbe husband takes a conveyance in fee, and at tbe same time mortgages tbe land back to tbe grantor, or to a third person, to secure tbe purchase money in whole or in part. Dower-cannot be claimed against rights under tbe mortgage. Tbe husband is not deemed sufficiently or beneficially seized, by such an instantaneous passage of tbe fee in and out of him, as to entitle his wife to dower against tbe mortgagee. A widow in this case, on foreclosure of tbe mortgage, and sale of tbe mortgage premises, will be entitled to her claim to tbe extent of her dower in tbe surplus proceeds after satisfying tbe mortgage; and if tbe heir or tbe owner of tbe equity of redemption redeems, or she brings her writ of dower, she is let in for her dower, on contributing her proportion of tbe mortgage debt.” 4 Kent’s Com. 38; 4 Mass. 566; Clarke v. Monroe, 14 ib. 351; Bogie v. Rutledge, 1 Bay 312; Stow v. Tifft, 15 Johns. 458; McCauley v. Grimes, 2 Gill & Johns. 318; Eilliam v. Moore, 4 Leigh 30.

As to tbe land, however, conveyed by tbe second mortgage to Lepretre, it is clear that her right to dower, if she survive her husband, is good, and can be in no wise impaired by tbe act of Dumie and Mazange, who became parties to that deed in tbe pretended capacity of her guardians, and as such undertook to pass her claim of dower to tbe mortgagee. We have seen that their appointment is absolutely void; and were it otherwise, I apprehend, tbe guardians of a lunatic wife can have no authority to relinquish her dower in tbe real estate of her husband. Tbe statute which authorizes tbe appointment of such guardians provides, that they “ shall have tbe same powers, to all intents and purposes, and shall be subject to the same rules, orders and restrictions as guardians of orphans.” Clay’s Dig. 302, § 29. An ordinary guardian has no authority of bis own mere will to sell the real estate of bis ward; be could not thus pass the title, and such a sale would be a nullity. “ With regard to tbe real estate it may be observed, that tbe guardian has no further concern with, or control over it, than what relates to the leasing of it, receiving the rents and profits, and keeping it in order. He may lease it, but the lease must not extend beyond the time when the ward will be of full age.” 1 Bouvier’s Inst. 143, 144; Ross v. Gill, 4 Call, 250; Truss v. Olds, 6 Rand. 256; Jones v. Ward, 10 Yerg. 160; Genett v. Tallmadge, 1 John. Ch. Rep. 561; Shook v. Sutton, 5 Halst. 133. Again, the requirements of the statute in relation to the mode by which the wife is to relinquish her dower in the real estate of her husbaird, conveyed by him during coverture, effectually forbid the idea that such relinquishment can be made by any person except herself. It is required that she should be examined privately and apart from her husband, and that, on such examination, she shall acknowledge that she makes the relinquishment “as her voluntary act and deed, freely, without any fear, threats, or compulsion of her husband.” Neither a guardian, nor an agent, can comply with the requisitions of this act; and consequently it may be safely held, that none but the wife, in person, can relinquish her claim to dower in the lands of her husband, aliened during coverture.

The next question presented arises out of the settlement between Lepretre and Eslava, in 1845, out of which sprung the second mortgage and the note, the payment of which is secured by it. It is for the sum of $23,402 and it is insisted by Eslava that, in making up this sum, compound interest, was charged and allowed. The governing principle acted upon in matters of mortgage by the courts of equity is, that the mortgagee shall be entitled onfy to principal, inter-' est, and costs; and it protects the debtor with peculiar jealousy against any attempt on the part of the mortgagee, by taking advantage of the necessities of the mortgagor, to impose on him harsher terms. Acting on this principle, equity has held, that an agreement entered into at the time of the loan, for converting interest into principal, from time to time as it shall become due, is oppressive and unjust, and tending to usury, and consequently it cannot be supported. But when interest has once accrued due, it becomes a debt. There is no longer, therefore, any objection to an agreement inter partes, that it shall be considered principal, and thenceforth carry interest. Indeed, it would be injurious to the mortgagor to establish the contrary, as it would remove an inducement to the mortgagee’s permitting his principal to remain, and, consequently, equity has recognized such agreement; but there must be no extortion on the part of the mortgagee, or otherwise equity will interpose for the relief of the mortgagor. Brown v. Barkham, 1 Pr. Wms. 654; Thornhill v. Evans, 2 Atk. 330; Ooote on Mort. 431, marg.

Equity considers tbe arrears of interest so converted into principal by agreement between tbe parties, in tbe light of a further advance, and when, as in this instance, there was no other charge or incumbrance on the estate of which the mortgagee had notice, at the time of such agreement and settlement, it will be allowed to be tacked to the first mortgage, and there can be no objection to its forming a part of the consideration for the second. 3 Pow. on Mort. 911 (Rand’s edition); Pawling v. Pawling, 4 Yeates, 220; Barclay v. Kennedy, 2 Wash. C. C. Rep. 350; Digby v. Craggs, Amb. 612; Greenleaf v. Kellogg, 2 Mass. 568; Coote on Mort. 431, marg.

It is also well settled, that, in case interest runs in arrear, and in the mortgagee’s account of arrears rests are made from time to time, on which interest is calculated, and ultimately a general account of all arrears, calculated on the footing of those rests, is signed by the mortgagor, and confirmed by a deed, although executed after a lapse of several years, for securing the balance, the transactions are not usurious, and the mortgagor is liable. Blackburn v. Warwick and wife, 2 Younge & Col. 92. In the present case, the settlement on the basis of rests in the account, and interest compounded on such rests, formed the basis on which the note for $23,402T\9o and the mortgage of 1845 were executed by Eslava, and as he has thus sanctioned it, and there was no coflicting lien or subsequent incumbrance on the property at the time of this settlement, he will not be allowed to complain of it, and the court will charge the mortgaged premises with the payment of the sum so found due.

The agreement, however, of the 4th February, 1845, by which Eslava agrees that Lepretre shall be allowed to compound the interest on the mortgage debt, annually, for the term of four years, at the rate of 8 per cent., does not deserve the favor of a court of equity, and will not be enforced* It has been before remarked, that a court of equity regards with jealousy all arrangements made between the mortgagor and mortgagee, by which the latter obtains an advantage over the former not stipulated for in the mortgage deed itself. And while it will permit the mortgagee to state his account for interest past due, allowing rests, and compounding tbe interest at each rest, if they are not too frequent, considering tbe interest accrued already as a further advance; yet, acting on tbe principle that tbe parties do not deal on terms of strict equality, equity bas beld, that an agreement entered into at tbe time of tbe loan, for converting interest into principal from time to time as it shall become due, is oppressive and unjust, and tending to usury, and that, consequently, it cannot be supported. Mitford v. Featherstonhaugh, 2 Vesey, 445; Ossulston v. Yarmouth, Salk. Rep. 449; Chambers v. Goldwin, 9 Ves. 271; Coote on Mort. 433, 434. Tbe agreement under consideration comes under tbe rule laid down in these and numerous other cases, and the complainant cannot be allowed to set it up and enforce it against Eslava.

"VVe regard the other agreement of the same date, by which Eslava, in consideration of his inability to pay the debt to Lepretre, and as an indemnity to the latter for the difference between the amount of interest allowed by the laws of this State on the debt of Eslava to him, and that which Lepretre was paying on money borrowed in Louisiana, binds himself to pay the additional interest of 2 per cent, per annum, over and above the 8 per cent, allowed by law, as rightly set aside by the Chancellor. It is both oppressive and unjust, and deserves no favor at the hands of a court of equity.

We agree, also, in the conclusion of the Chancellor, that, on a reference to the master, the amount of the debt secured by the second mortgage should be taken as the basis of the account, and as the true sum due from Eslava to Lepretre at that date, which is properly chargeable on the mortgage premises. We perceive, however, that in setting down the amount of this note in his directions to the master, the Chancellor has stated' it to be $23,502 29, instead of $23,402 29, as it is shown to be in the record and mortgage. He was doubtless betrayed into this error by the fact, that the former is abundantly proved to be the amount which was really due to Lepretre at the time the note was executed, but, through mistake, both the note and mortgage are for one hundred dollars less. The sum thus omitted through mistake cannot be considered as a part of the mortgage debt, to charge its payment upon the lands conveyed, especially as the rights of a subsequent mortgagee, and a purchaser of the equity'of redemption have intervened before the mistake was discovered and corrected.

"We think, also, that on the accounting Eslava should be allowed a credit for all sums paid by him in good faith for filling up, walling, &c., the lot of Lepretre, mentioned in the pleadings and proof, less whatever amounts may have been received by him, and are unaccounted for, of rents and profits arising out of said lot. The proof is ample, that he had Le-pretre’s authority to make the expenditure, and the latter should not now be allowed to repudiate it.

It remains only to be said, that, for the errors hereinbefore noted, the decree must be reversed, and the cause remanded.

It may not be amiss to add, that, on the cross error assigned by Lepretre, no reversal could take place, as his only complaint is, that the amount of money which the decree ascertains to be due to him on the mortgage was too small, when it is evident, from our ruling on the errors assigned by the defendants, it is greater than it will be found to be when the error of $100 is corrected, and Eslava is allowed a credit for the money expended in filling up the lot mentioned in the pleadings and proof.