Malone & Foote v. Marriott , 64 Ala. 486 ( 1879 )

BRICKELL, O. J.

The decree of foreclosure and sale, rendered on the 27th October, 1869, under our decisions and practice, is partly final, and partly interlocutory. Adjudging the equities, and settling the rights of the parties, it is so far final, that from it an appeal would lie; yet, as further proceedings are by it ordered and contemplated, and were necessary to its completion, and letting the complainant in to the full benefits to which it was determined he was entitled, it is, in a limited sense, interlocutory. The cause was not by it finally disposed of : it remained a cause in fieri, under the control of the court, in which further proceeding were necessary to carry the decree rendered into full effect. — Jones v. Wilson, 54 Ala. 50; 2 Dan. Ch. Pr. 986-7, and notes.

2. The cause remaining in fieri in court, there was no discontinuance of it by the omission of the register to continue the case on the docket, nor by his failure to execute the order of sale, though the complainant may not have required its execution. The practice is settled, by numerous decisions of this court, that if there be not some positive intervention or direction by a plaintiff or a complainant, the neglect of a clerk or a register to docket a cause, and the failure to take orders therein for several terms, will not operate a discontinuance, unless the lapse of time is so great that a presumption of payment, or of extinguishment, would arise. — Hatchett v. Billingslea, at the present term; Ex parte Remson, 31 Ala. 270; Forrester v. Forrester, 39 Ala. 320; Wiswall v. Glidden, 4 Ala. 357; Brown v. Clements, 24 Ala. 354. This practice may induce laches in the prosecution of suits, and may sometimes be productive of injustice to defendants who have been lulled into indifference by the negligence of their adversary; and it may have been better that the rule should have been established, that the laches of a party prosecuting a suit, whenever it produces a chasm in the proceedings, should operate a discontinuance. Parties to pending suits, in courts of law, or of equity, are bound to diligence in the prosecution or the defense. Without the concurring laches of the actor, it is simply impossible that, by the laches of a ministerial officer, a pending suit should be dropped from the docket, and an omission to enter proper orders, keeping it alive from term to term. We must adhere to the rule, as it has been settled by a chain of decisions, running through a period of forty years. In this case, it is apparent the delay in the execution of the interlocutory decree was at the instance, and for the benefit of the parties complaining of it, affording, and intended to afford them, the opportunity of paying the mortgage debt without a sale under the decree. Their complaint of the delay has not a very gracious aspect, and the rule operates beneficially, not harshly, in the present case, so far as it is now disclosed.

3. There was no change of right, or interest, which rendered it necessary to the execution of the decree, that other parties should be brought before the court. The assignment by the complainant of the decree, or of the mortgage debt, which was merged in the decree, did not render it indispensable that the assignees should be made parties, or file a bill of revivor or supplement, as it is urged they should have done, presenting their rights for the consideration of the court. The assignment operated a license to continue the suit to a final termination, in the name of the assignor. Or, if deemed necessary for the protection of the assignees, they could, by appropriate pleading, introduce the assignment, avoiding the necessity of proving notice of it, and preventing subsequent transactions with the assignor, which might affect their rights. Either course was open to them; and electing to continue the proceedings in the name of the assignor, is not the cause of just complaint by the defendant, for the assignee, as well as the assignor, will be bound and concluded by all that has been, or may be done in the progress of the cause. — Ex parte Railroad Co., 95 U. S. 221; 1 Dan. Ch. Pr. 220-21; 2 Brick. Dig. 153, § 312.

4. Nor did the conveyance, pendente lite, by the mortgagor, of a part of the mortgaged premises, to Marriott and wife, render it necessary that they should be introduced as parties. An intermeddler with property, the subject of pending litigation, can not claim that the proceedings shall be suspended or delayed, until he is made a party. It is at his own peril that he purchases, and he is as conclusively bound and affected, as if he had been made a party. Otherwise, by successive alienations, litigation could be protracted, and the.administration of justice delayed indefinitely. — Chaudron v. Magee, 8 Ala. 570; Tilton v. Cofield, 93 U. S. 163.

5. If there had been payments made on the mortgage debt, subsequent to the rendition of the decree of sale, which the assignees refused on request to recognize and allow, and they were requiring a sale for the entire debt, or for more than was justly due, it would have been competent for the chancellor, on a petition properly verified by the mortgagor, or by his assignee, in vacation, to have suspended the execution of the decree until the amount of such payments was ascertained, and the balance of the mortgage debt, or .of the decree, was declared. Such a suspension should not be granted, upon a petition merely averring, in general terms, the fact that payments had been made; not stating them with any certainty as to time or amount. Nor should such suspension, in any case, be allowed, upon a petition, to which the parties having interests in the execution of the decree are not made parties ; nor unless it is distinctly averred that they have been requested and have refused to allow the payments, or some of them, or some just excuse for the omission to make the request is shown. Parties are not to be compelled into the vexation and expense of litigation they do not provoke, either by negligence, or by some positive action. And when the order of suspension is made upon the ex-parte application of a party bound by the decree, and under the duty of payment, he should be required to give adequate security to the parties who are delayed, to protect and indemnify them, if the complaint is ascertained to be wrongful- — if it is not prosecuted to effect. This is the rule prevailing at law, when the execution of a judgment is superseded, because of matters alleged to have occurred subsequent to its rendition; and the same rule should be observed in chancery.

7. If, as is averred in the petition of Marriott, the assignees of the decree had released the lands conveyed to him, this would have been sufficient ground for suspending the execution of the decree as to the sale of these lands, until the fact of release could be ascertained and declared. Such suspension could properly be obtained on petition. But to such petition the assignees are indispensable parties; and the suspension should be confined to the lands claimed to have been released, leaving the decree of full force, and the sale of the other lands to be made, if the complainant so elects. Nor should the suspension be granted, without requiring adequate security to protect and indemnify the parties delayed. Statutory authority is not necessary to enable a court of equity to require from parties who seek to delay the execution of its orders and decrees security against a wrongful interference with the rights of parties which have been judicially ascertained and declared. — High on Inj. § 3947 ; Hamner v. Cobb, 2 St. & Por. 383; Dudley v. Witter, 46 Ala. 664; S. C., 51 Ala. 456.

The inception of the errors in this cause proceeded from entertaining the original petition of Marriott, and the order made thereon, temporarily suspending the execution of the decree of sale. There was no party defendant to that petition, but the register of the court of chancery; and there was manifest impropriety in introducing him as a party. He was simply obeying the decrees of the court, in proceeding to a sale, and had no right or interest involved. Neither the complainant in the decree, nor the assignees of the decree, though the assignment is averred, were made parties; and no security was required, as a condition precedent to the order of suspension. The petition is vague and indefinite as to the fact of payments made on the decree, and is without averment that the assignees had been requested and were unwilling to allow all payments claimed. Decrees of sale would be of little value, if they were subject to suspension in this mode. The order of suspension was directed, not only against the sale of the lands conveyed to Marriott, and claimed to have been released by the assignees, but the other lands not conveyed, and in which he had not, and did not claim an interest. The order should have been discharged, and the petition dismissed.

The error pervading the entire proceedings of the chancellor has its foundation in the hypothesis pressed by the counsel for the appellees, that the decree of sale rendered in 1869 had, by the lapse of time, lost its euergy and vitality, and could be restored and reviyed only by a bill of revivor or supplement, or a bill to carry it into execution. That hypothesis cannot be supported, as we have already seen. The cause in which the decree was rendered, was a cause pending in court; no abatement or discontinuance had occurred; the sale ordered was necessary, to carry into effect the interlocutory decree which had been rendered. The assignees had the right to demand its execution, and prosecute the suit to a final decree. It was the duty of the chancellor to reinstate the cause on the docket, and to leave the register to proceed in the execution of the decree of sale, as he was instructed by the parties in interest — the assignees. If circumstances had intervened, rendering its execution inequitable, partially or wholly, these could have been presented by petition, and an order of suspension obtained on equitable terms, as we have indicated, until due inquiry into them was made, and the present rights of the parties ascertained and declared.

8. The petition of the assignees, Malone & Foote, was unnecessary, except so far as it sought an injunction against Marriott and wife, their tenants, lessees, or licensees, to stay waste on the mortgaged premises. On the filing of the petition, the chancellor ordered a temporary injunction, which was subsequently dissolved, and the petition dismissed. The petition discloses the insolvency of Marriott, and of the mortgagor; that the chief value of the lands consists in the pine trees and other trees valuable for lumber growing thereon, which he is cutting and removing, and permitting to be cut and removed therefrom, and thereby the value of the lands will be depreciated, and the mortgage rendered an insufficient security for the payment of the mortgage debt. That Marroitt stands in the place of the mortgagor, affected and bound by the decree rendered against him, having no other or greater rights, we have already declared. That, after a decree of foreclosure of a mortgage, the mortgagor remaining in possession, will, on application, be restrained from committing waste, is recognized in England.— Wright v. Atkins, 1 Ves. & Beames, 314; Barlow v. Gains, 8 Beavan, 329; Goodman v. Kine, Ib. 379. The right of a mortgagee to the interference of a court of equity, to prevent the mortgagor in possession from the commission of waste, rests upon the broad equitable consideration, that, during the life of the mortgage, the security it affords ought to be preserved unimpaired; that the mortgagor, and whoever stands in his shoes, is in conscience bound to its preservation. And when, as in this State, the mortgagee is regarded as the owner of the fee, and the mortgagor in possession as his tenant, there is additional ground for interference to restrain waste.- — High on Inj. §§ 313-14. There can be no substantial reason for interference before, and not after a decree of foreclosure and sale, which settles conclusively the rights and equities of the parties. We think the chancellor erred in dissolving the injunction, and in not retaining the petition of Malone & Foote, as an application to stay the waste on the mortgaged premises, it was averred was being committed.

The decree must be reversed, and a decree conforming to this opinion will be here rendered.