Jones v. Richardson , 85 Ala. 463 ( 1888 )

SOMERVILLE, J.

The bill is one to redeem, brought by the heirs of a deceased mortgagor. A demurrer was interposed, based on the suggestion that the personal representative of the mortgagor was a necessary party to the bill; and this demurrer was sustained by the chancellor.

There may be some cases where the personal representative of the mortgagor would be an indispensable party to such a proceeding, but this is not one of that character. He would only be a proper, but not a necessary party, under the facts alleged in the bill. The heirs are unquestionably entitled to redeem, by paying the mortgage debt, with interest, if this be the only incumbrance on the land held by the mortgagee, as is alleged, and admitted on demurrer. The decree to be rendered does not affect the estate of the mortgagor in any respect. No payments are shown to have been made by her in her life-time, but all payments made - on the mortgage debt are alleged to have been made by the heirs themselves. Nor does the bill contemplate the abatement of the debt by an appropriation of the rents and profits of the land, to the prejudice of the estate. Nor is any effort made to charge the personal assets of the mortgagor’s estate primarily with this debt. No accounting is, therefore, needed between the mortgagor’s personal representative and the estate of the mortgagee, he also being shown to be dead. The offer of the complainants is to pay the mortgage debt themselves, and the sole party entitled to recover it is before the court. The chancellor erred in sustaining tbe demurrer. — Story’s Eq. Plead. (9th Ed.), §§ 182-186.

The case is entirely different from that of a bill filed by a mortgagee to foreclose a mortgage, or enforce a vendor’s lien, where the effort is to establish a debt against the mortgagor’s estate, and subject real assets to its payment. In such cases, the deceased mortgagor’s personal representative has been held to be a necessary party, for manifest reasons, which have no application to this case. — Moore v. Alexander, 81 Ala. 509; Gardner v. Kelso, 80 Ala. 497; Bell v. Hall, 76 Ala. 546; Dooly v. Villalonga, 61 Ala. 129.

Reversed and remanded.