Rogers v. Torbut , 58 Ala. 523 ( 1877 )

STONE, J.

The present record is in a very embarrassing condition. An original bill was filed by John C. W. Rogers, Anthony E. Rogers and Martha A.'Rogers — the last a married woman, suing by Anthony E., her husband and next friend. _ The bill charges usury in excessive form, and seeks to enjoin the sale of the mortgaged property under the power of sale contained in the mortgage, on account of the alleged usury. It claims no other relief.

The bill contains this clause: “ Your orators and ora-trix hereby offer to pay to the said E. A. Torbut such sum. as, after stating said account, shall appear to have been received by the said John C. W. Rogers from said James M. Torbut, together with the legal interest thereon.” The bill charges that the mortgage under which Torbut was proceeding to sell, embraces “ the following property of complainants, Anthony E. and Martha A. Rogers, to-wit: the north half of section,” &c. In the prayer for relief is the following, among other clauses : “Complainants further pray that, on final hearing, said E. A. Torbut be restrained from proceeding to collect, by sale of said mortgaged premises, or foreclosure of said mortgage, any sum, except such as by said account may be fixed and ascertained to be due him from said complainants.” There is no other averment in the original bill which tends to show that Mrs. Martha A. Bogers had any interest in, or claim to the property in controversy. Nothing said about the nature of her claim, whether a separate estate or not, and if separate, whether statutory or equitable.

The answer of the defendants admits the usury charged; states the note and mortgage are the property of E. A. Tor-but, and that James M. Torbut has no interest in them; that the said E. A. Torbut has proposed to complainants, through his attorney, to accept in full payment the amount admitted in the bill to be due ; and he is now willing to accept the same in full satisfaction ; but that the “complainants declined and refused to make good their offer contained in their bill to pay the principal and legal interest, and still refuse to pay principal and legal interest.”

1. It will be observed that up to the present stage of this case — that is, up to the formation of the issue, if issue it may be called- — the record presents but a single question: that of the right of complainants to be relieved against the excess of interest charged above the legal rate. That question is fairly presented, and the bill sufficiently offers to do equity, by proposing to pay the amount of money borrowed, with lawful interest thereon. Without this offer, the complainants would have had no standing in court, and their bill would have been demurrable. — Nelson v. Dunn, 15 Ala. 501; Tucker v. Holley, 20 Ala. 426; Crews v. Threadgill, 35 Ala. 334, 342; Martin v. Martin, 35 Ala. 560; Miller v. Bates, Ib. 580 ; Cain v. Gimon, 36 Ala. 168; 1 Eq. Ju. § 301; Fanning v. Dunham, 5 Johns. Oh. 122, 142-3; McGuire v. Van Pelt, 55 Alabama, 344 The rule in such case is, that a complainant asking such relief, must either bring the money borrowed, and interest, into court, or he must, by his offer, submit himself to the authority and jurisdiction of the court, so that the court, without more, may compel him to do equity, as a condition upon which the relief prayed will be granted. This is the spirit, this the sense of the rule. In Branch Bank of Mobile v. Strother, 15 Ala. 51, 60, it was said, “ The reason why it is necessary, in a bill seeking relief against usury, to offer to pay the amount actually due, is, that the court will not interfere, unless the complainant will either pay, or submit that a decree be rendered against him for the principal and lawful interest; and the court has not the power to render a decree against him on his own bill, unless he makes this offer by the bill.” — See, also, Fanning v. Dunham, supra. Under these authorities, it is clear that, on the bill and answer, without a cross bill, the court was authorized to ascertain by its decree the amount due Torbut, and, if not paid, to order a sale of the lands conveyed. Hence, no cross bill was necessary to support a decree ordering a sale of the lands.

2. The defendants, however, made their answer a cross bill, prayed process against defendants (complainants in the original bill), and prayed for a decree of foreclosure. The answer of Mrs. Rogers to the cross bill, differs from the averments of the original bill, only in the following particulars : She avers that at the time she executed the note and mortgage, she was a married woman, wife of Anthony E. Rogers ; that no consideration moved to her for executing said papers, “ and that she then owned a life estate in all the property described in said mortgage (with the exception of that described as being in the city of Opelika); said life estate was created by' the will of Daniel Rogers, deceased.” Still, no averments in any of the pleadings that the lands were of the separate estate of Mrs. Rogers. There is an agreement in the record, signed by the solicitors of both parties, with a copy of the will of Daniel Rogers attached and made part of the agreement, which admits that Mrs. Rogers was a married woman when she signed the note and mortgage ; that she owned a life estate in the lands, and, construed -in connection with the will, shows that the same was her statutory separate estate. Such is the proper construction of the will of Daniel Rogers, for it contains ne words excluding the husband’s marital rights. — See 2 Brick. Dig. 81-2, §§165, 169,172, 173, 175, 178, 179, 184, 185, 186. We have, then, a case in which, according to the pleadings, the decree is right. According to the agreed facts, it is wrong. See Bibb v. Pope, 48 Ala. 190; Northington v. Faber, 52 Ala. 45; Peeples v. Stolla, 57 Ala. 53. If this case were at all dependent on the testimony, we would feel it our duty to reverse the decree of the Chancellor. The testimony fails to support the case made by the pleadings. The original bill and answer make a complete case for the relief which was granted, and all else must be disregarded. The Chancellor did not err in the substance or principles of his decree. This renders it immaterial whether there was or was not a proper ■issue formed on the cross bill.

3. There is a difficulty in this case, even if the original bill were amended, so as to show Mrs. Eogers’ title to tbe lands, and that the life interest is her statutory separate estate. She and Anthony F. Eogers, her husband, and John O. W. Eogers, are joint complainants, and, unless they are entitled to common relief, they should not have been joined. Each and all are entitled to make the defense of usury , but the rights of Mrs. Eogers as a feme covert, and to claim that the property is her statutory separate estate, and not subject to the mortgage made by her for the security of another’s debts, is personal to her. She can not claim this personal relief under a bill-filed by her conjointly with the male complainants in this cause. — Bibb v. Pope, 43 Ala. 90; Northington v. Faber, 52 Ala. 45; Peeples v. Stolla, supra; 1 Brick. Dig. 750, §§ 1634-5-6.

4. The decree of the Chancellor was rendered in this cause in vacation, without any consent therefor entered into by the parties or their solicitors. It is here contended that this decree is a nullity, because it was rendered in vacation without agreement. And this depends on another position taken for appellant, namely: that the statute under which the Chancellor so rendered his decree was not constitutionally enacted. As the statute on this subject stood when the Ee-vised Code was adopted in 1867, the provision was: “ The Chancellor must, when practicable, render his decrees in writing, during the session of the court at which the cause is heard; he may, however, in difficult cases, render a decree in vacation within six months after the hearing.” — Code of 1867, § 3470.

On the 8th of December, 1873, the bill was enacted “ To amend section 3470 of the Eevised Code of Alabama.” By said enactment, the section named was amended so as to read as follows: “ The Chancellor must, in all cases, render his decrees in writing during the session of the court at which the cause is heard. He may, however, by written consent of the counsel in the cause, render a decree in vacation, within ninety days after tbe hearing.” — Pamph. Acts, 58. This repealed section 3470 of the Eevised Code, under the Constitution of 1868, art. 4, sec. 2.

On the 4th of February, 1876 — Pamph. Acts 184 — the legislature enacted the statute “ To repeal an act entitled an act to amend section three thousand four hundred and seventy of the Eevised Code of Alabama, approved December 8, 1873.” Such is its caption. By the first section it recited and repealed the amendatory statute which we have 'copied above. The whole amendatory act of Dec. 8, 1873, was copied in extenso in the repealing act of February 4, 1876," with the superceded words, “ be and the same is hereby repealed.” Tbe act of Dee. 8, 1873, bad repealed section 3470 of the'Eevised Code. — See Constitution of 1868, Art. 4, § 2. And tbe first section of tbe act of Eeb. 4,1876, repealed tbe act of Dec. 8,1873. This, under tbe common law rule, would revive tbe statute first repealed. — Sedg. Stat. and Const. 116. Put sucb is not tbe rule under our present constitution. Tt provides, Art. 4, sec. 2, that, “ No law shall be revived, amended, or tbe provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” — -See Dane v. McArthur, 57 Ala. 448. Tbe legislature, in tbe act of Eeb. 4th, 1876, doubtless attempted to conform to this requirement of tbe Constitution, for they added a section, number 2, which is substantially tbe same as section 3470 of tbe Eevised Code, and which is now section 3896 of tbe Code of 1876. If that section was constitutionally enacted, then tbe Chancellor was authorized, without any consent of counsel therefor, to render bis decree in vacation, within six months after the submission. Was the second section constitutionally enacted ? The Constitution ordains, art. 4, sec. 2 — that “ each law shall contain but one subject, which shall be clearly expressed in the title,” with certain exceptions not necessary to be noticed here. The caption of the act of February 4th, 1876, not only does not express any intention to revive section 3470 of the Ee-vised Code, but it makes no mention whatever of that subject. There is nothing in the caption which authorizes us to declare this subject is expressed or embraced within it; and the result is, that section 2 of the act is unconstitutional, because not expressed in the caption. — Lowndes County v. Hunter, 49 Ala. 507.

A caption might have been chosen which would have included this section, and the residue of the statute as one subject; but it was not done. We need not inquire what effect the incorporation of the second section of the act of 1876, in the Code of that year, will have on its operation after that Code became operative — December 9th, 1877. The decree in the present case was rendered before that time.

The decree being rendered in vacation, without the consent of counsel, must be reversed, and the cause remanded.