Fields v. Helms , 70 Ala. 460 ( 1881 )

BBICKELL, C. J.

The precise point of the motion to dismiss the bill for want of equity is, that it avers payment in full of the mortgage debt, and yet avers that, if in the fact of full payment the complainant should be mistaken, he is ready and willing to make, and offers payment of any balance of the debt which may be found unpaid; and in either aspect relief is prayed. A bill, with such alternative, inconsistent averments and prayers, it is argued, can not be maintained. The general rule of equity pleading is, that if a complainant is not certain of his title to the specific relief he wishes to pray for, the prayer of the bill may be so framed,that, if one species -of relief is denied, another may be granted. The limitation of the rule, as was stated in Micou v. Ashurst, 55 Ala. 607, is, that the alternative prayer must not be founded on inconsistent titles, and the relief must be of the same kind and nature. The illustration of the limitation given in 1 Dan. Ch. Pr. 385, is very apt: “A plaintiff can not assert a will to be invalid, and at the same time claim to take a benefit on the assumption of its validity.” Another apt illustration is found in Shields v. Barrow, 17 How. (U. S.) 130, where one of the prayers of the bill was, to set aside a contract on the ground of fraud, and another was that, if the contract was valid, specific performance of it should be enforced; the bill,' praying for repugnant, inconsistent relief, was dismissed.

Admitting the present bill to be framed with a double aspect, •and that it prays for alternative relief, the title of the complainant is the same, and the relief prayed is of the same naturé and character. A mortgagor who, after the law-day of the mortgage, pays the mortgage debt, has no other remedy to divest the legal estate which has become absolute in the mortgagee, and to re-invest himself with it, than by bill in equity. The bill is essentially a bill to redeem. The right and title to relief springs Horn the nature and character of a mortgage in the contemplation of a court of equity ; that it is, and shall stand, though its condition is broken, as a mere security for a debt. Though full payment of the mortgage debt may be averred, it is not unusual, and it is more appropriate, that the complainant should offer to pay any balance found due on the debt. 2 Jones Mort. § 1093. If the offer was not made, it would, perhaps, lie within the power of the court to impose as terms and conditions, upon which redemption could be had, the payment within a specified time of the unpaid balance of the debt, or that the bill be dismissed. — Beach v. Cooke, 28 N. Y. 508. However that may be, when the bill contains the offer, the power of the court, is undoubted. The object and Durpose of the bill is single — the redemption from the mortgage. If the debt has been fully paid, the complainant is entitled to relief, without terms or conditions. If a balance of the debt remains unpaid, to the same relief, upon the same title, and in the same right,- he is entitled, on such terms and conditions as the court may impose for the payment of such balance. The case is of that precise character, in which a bill is properly framed in a double aspect, with alternative prayers for relief.

Affirmed.