Tutwiler v. Dunlap , 71 Ala. 126 ( 1881 )

STONE, J.

Andrew S. Steele, in July, 1859, was appointed administrator of the estate of E. B. Gr. Steele, deceased, and Save bond with Bobert B. Dunlap as one of his sureties. In 'ebruary, 1872, the said Andrew S, Steele, not having settled up his said administration, made a mortgage with power of sale, and therein conveyed to Bobert B. Dunlap and others, his sureties, a tract of land of some thirteen hundred acres, to indemnify them against their liability as his sureties. The mortgage stipulated that A. S. Steel, the mortgagor, was to retain possession of the lands, until his liability as administrator was ascertained and determined by a proper decree of - the court having jurisdiction thereof. In the spring of 1874, under execution from the Probate Court of Greene county, Henry A. Tutwiler purchased eight or nine hundred acres of the mortgaged land at sheriff’s sale, and received the sheriff’s deed therefor. The charge of Dunlap’s bill in reference to said sale is, that the sher-' iff “ sold all the right, title, claim and interest of the said Andrew S. Steele in and to said lands,” and Tutwiler became the purchaser. No issue was made on this averment of the bill, except that it is claimed under the cross-bill that the executions under which Tutwiler purchased were void as- against A. S. Steele. This question we will consider further on. Soon after his purchase, Tutwiler instituted his statutory real action against Steele for the recovery of said lands, and did recover them by the judgment of the court. That judgment was affirmed on appeal to this court.-Steele v. Tutwiler, 57 Ala. 113. In July, 1877, Tutwiler was put in possession of said lands under his recovery, and was in possession when this bill was filed by Dunlap — November 22d, 1877.

In May, 1875, the children, distributees of E. B. G. Steele, filed a bill against A. S. Steele and his sureties, including said Dunlap, to have a settlement of the said administration, and to recover their distributive interests. At the June term of the court, 1877, a decree was rendered in favor of the complainants in said cause and against Steele and his sureties for twenty-five hundred dollars, which Dunlap, the only solvent party, has had to pay. This bill is filed by him to obtain reimbursement out of the property mortgaged. There was a demurrer to tile bill, assigning many grounds, and also a motion to dismiss on a specified ground. There was nothing in either of the objections specified. There is, however, a defect in the bill, in this, that it does not aver that Steele, the administrator, was in default as such administrator, or that he owed anything by virtue of his administration. The averment is, that “ on or about the 26th day of May, 1875, the heirs at law of Ezekiel B. G, Steele, to-wit, Harriet M. Steele and Mary F. Steele, filed their bill in this court against Andrew S. Steele as the administrator of the said E. B. G. Steele and his sureties on his said bond, to-wit, your orator and Sidney P. Steele, calling the said Andrew S. Steele to a full and final settlement of his administration. Whereupon such proceedings were had in said cause, that a final decree was rendered therein at the June term, 1877, in favor of complainants against said defendants, for the sum of twenty-five hundred dollars and costs of suit. All of which will more fully appear by the papers in said cause, and the decree thereon rendered ; and so much as may be necessary will be put in evidence on the trial of this cause.” The foregoing is a copy of all the bill contains, tending to show A. S. Steele as administrator owed the complainants anything. It is wholly insufficient. Tutwiler was not a party to that suit, and was not concluded by anything found or determined in that cause. It was res inter alios aota —a proceeding to which he could not be a party, and there was no privity between him and either of the parties to that suit, which could make the adjudication binding on him. True, his rights were subordinate to those of Dunlap, but he was entitled to his day in court, to controvert the extent of Dunlap’s superior right, or whether in fact he had any.-Snodgrass v. Br. Bank, 25 Ala. 161; Troy v. Smith. 33 Ala. 469; Marshall v. Croom, 60 Ala. 121; Donley v. McKiernan, 62 Ala. 34; Lankford v. Green, 62 Ala. 314; Floyd v. Ritter, 56 Ala. 356.

There was objection to the admission in evidence of the decree rendered in the case of Harriet M. and Mary F. Steele v. Andrew S. Steele, Dunlap et al. This objection was rightly overruled. The record was competent evidence against the whole world to prove the fact of its rendering, and the amount of it. Therefore it was properly admitted in evidence. It was also evidence against Andrew S. Steele, the mortgagor, to prove his liability to Dunlap, by judicial ascertainment in a suit to which they were both parties. As against Tutwiler, it was evidence to prove rem ipsam, and nothing else. It was no evidence of the facts — the devastavit of A. S. Steele —on which it rested. The present case is even stronger than this. That decree was rendered by consent of parties. And that decree was the only evidence offered in the court below, to prove A. S. Steele’s default, for which Dunlap had been made liable. The. chancellor erred in granting relief on this testimony against Tutwiler.

With the exception of the omitted averment, indicated above, the bill clearly contains equity; and if it be shown that A. S. Steele was in default to the distributees of E. B. Gr. Steele, and the amount of such default, which Dunlap has been required to pay, to that extent Dunlap is entitled to relief. The decree of the chancellor, granting relief on the original bill, must be reversed, and the cause remanded, at the cost of Dunlap, the appellee.

It is objected to the cross-bill of A. S. Steele that it is not germane to the original suit, and should not, therefore, have been entertained. The purpose of the original bill, as we have seen, was to foreclose a mortgage made by A. S. Steele to Dunlap and others. Tutwiler was a necessary party, because he was in possession, and claimed a part of the land by a title later in its acquisition than the date of the mortgage under which Dunlap claimed. The purpose of the cross-bill was to recover, not from Dunlap, but from Tutwiler, a co-defendant, the residuum of the land, left after satisfying Dunlap’s mortgage. _ A cross-bill is, in its nature and purposes, defensive to the original bill. If its object and effect be not to defeat a recovery by complainant, in whole or in part, or to modify tbe relief tbe complainant obtains, then it is not defensive in its purpose, and is not germane to tbe bill.-Davis v. Cook, 65 Ala. 617; Cont. Life Ins. Co. v. Webb, 54 Ala. 688; Winn v. Dillard, 60 Ala. 369, and authorities cited. Tbe claim set .up in the cross-bill is alone between Steele and Tutwiler, is a purely legal demand in which Dunlap has no concern whatever, and is not a proper subject for a cross-bill. The decree of the chancellor on the cross-bill is reversed, and a decree here rendered, dismissing it at the costs of A. S. Steele.