Bibb v. Hawley , 59 Ala. 403 ( 1877 )

BRICKELL, C. J.—

The argument of appellant’s counsel, is devoted mainly to a discussion of the legality of the contract made by appellant with Morrison & Co. A consideration of that question, on examining the record, we find the parties have by agreement waived, and there would be a manifest impropriety in the expression of any opinion in reference to it.

The remaining ground of error insisted on, the failure to make the mortgagee in whom the legal title resides, a party is however fatal to the decree. The uniform course of decision in this court, is, that to a bill for foreclosure, by the transferree of a mortgage debt, the mortgage not having been assigned to him, so as to pass the legal estate, the mortgagee is an indispensable party.—Prout v. Hoge, 57 Ala. 28. The omission of an indispensable party, is available on error, though objection was not made in the court of chancery. McMaken v. McMaken, 18 Ala. 576; Woodward v. Wood, 19 Ala. 213.

The decree must be reversed and the cause remanded.

Stone, J., not sitting.