Madden v. Floyd , 69 Ala. 221 ( 1881 )

SOMERYILLE, J.

This cause is -here on appeal from an an interlocutory decree of the chancellor, overruling a motion made to dismiss the bill for want of equity. The motion was made after a decree pro confesso on the bill, which had been entered on the thirtieth day after the service of the summons, and which the chancellor had declined to set aside on suggestion of its irregularity by the defendants.

We are of opinion that the appellants had the right to move to dismiss for want of equity notwithstanding the decree proconfesso against them. The general rule, it is true, is, that a defendant against whom such a decree has been rendered for failure to answer is considered as being in contempt and he can not ordinarily be heard for any purpose before the court. — Mussina v. Bartlett, 8 Port. 277. But the statute provides that he “ can appear and contest a decree on the merits of the bill, or may appear before the register on a reference.” — Code, 1876, § 3826. Rule number 76 of Chancery Practice further provides that “ a defendant may at aaiy stage of the cause move to dismiss a bill for want of equity, unless a similar motion has been made and determined.” — Code, p. 172. The decree was clearly no bar to the motion, as has been heretofore expressly adjudged by this court. — -Thornton v. Neal, 49 Ala. 590; Smith v. Robinson, 11 Ala. 840.

The bill is one filed by a surety, who has paid a mortgage debt, and its design is to sell the property expressly conveyed in the mortgage as an indemnity to hold him harmless. The mortgage debt is evidenced by a promissory note signed by the appellant, A. A. Madden, as principal, and the appellee, Floyd, as surety, and is fully described in the mortgage itself. The objection urged is, that the mortgage is void for uncertainty on the ground that it is signed by three. persons, no-one of whose names appears in the granting clause of the conveyance, otherwise than under the general designation of the personal pronoun “I.” If the words in an ordinary promissory note are “I promise to pay,” and there are many promisors, it-is the several promise of each, as well as the joint promise of all. — 1 Parsons’ Bills and Notes, 251. It is unnecessary to decide that a similar rule applies to deeds and mortgages. The rule as to the latter is settled to be, that where several persons sign such a conveyance, and the names of one or more of them fail to appear as grantors described in the body of the instrument, those not so named are not bound, and it is not their deed.- — Harrison v. Simons, 55 Ala. 510; Peabody v. Hewett, 52 Me. 50. The only object of description is obviously to distinguish one person from another, and it “seems to be sufficient if this is effected, though the true name, of the party be not used, or even no name at all.” The description is sufficiently certain, if the identity of the party can be worked out through a proper application of the maxim, Id certum esi quod certumreddi potest. — 3 Wash Heal Prop. 236-37. This is easily done-if we construe the mortgage and note together, which are parts-of the same transaction'and constitute but one contract, the one being fully described in the other. It is thus manifest that A. A. Madden, the principal in the note, is also the person intended to be described as the maker of the mortgage.

- It is further insisted by appellants that the note secured by the mortgage, according to the allegations of the bill, is void under the statute of frauds as “ a special promise to answer for the debt, default, or miscarriage of another,” because it fails to-express the consideration. — -Code, § 2121. The statute, we-think, has no application to the case. There is no effort to enforce the obligation of a guarantor. Here the surety lias paid the debt, and the principal is liable to refund ...the amount as-money paid on request. The original note has been discharged by payment, and a, new debt has been created between new parties. It is not affected in any manner by the statute of frauds.. Brandt on Suretyship, § 196; Beal v. Brown, 13 Allen (Mass.), 114.

The decree pro confesso was clearly taken one day too soony the defendants having thirty entire days within which to answer or plead to the bill after service of the summons. Being rendered on the thirtieth day, under the usual, prescribed system of computation, it was irregular. — Code, § 3824; lb. § 11; Pittfield v. Gazzam, 2 Ala. 325. This, however, constitutes no-■sufficient ground for assignment of error, in the present status of the cause, as it is only here on appeal from the decree refusing to dismiss for want of equity, under the provisions of a special statute authorizing such appeals.

There is no error in the decree of the chancellor and it is .accordingly affirmed.