Hambrick v. Russell , 86 Ala. 199 ( 1888 )

SOMERVILLE, J.

Tbe decree, wbicb is for tbe foreclosure of a mortgage, must be reversed for failure to make tbe mortgagee, Harris, a party to the foreclosure suit, be being tbe trustee in tbe mortgage, and as such the bolder of tbe legal title. In such cases, tbe trustee, in whom tbe legal title is vested, is an indispensable party, without whose presence tbe court will not proceed to a decree; and tbe objection is available at any time, and in any form.' — Comer v. Bray, 83 Ala. 217; Prout v. Hoge, 57 Ala. 28; Lawson v. Ala. Warehouse Co., 73 Ala. 290.

We might reverse tbe decree in this case, and have nothing further to add, as tbe testimony on another trial may be different from that in tbe present record. But, to prevent a second appeal, we proceed to consider some other points raised in tbe argument.

Tbe main point of controversy in tbe case is one as to tbe relative priority of titles acquired by tbe trustee (Harris) under tbe mortgage from Bradford Hambrick, on February 7th, 1881, and that acquired by Joseph M. Hambrick, by bis deed of September 9, 1865, from Alfred Hambrick, through whom both parties claim title.

It is contended for complainant, that Harris was a bona fide purchaser of tbe legal title, for value, and without notice, and should on this ground be protected. Tbe basis of this claim is, that tbe deed of Joseph Hambrick,’ whatever interest it created in him, was not recorded at tbe time tbe mortgage to Harris was executed, and that neither be, nor tbe mortgagor, Bradford Hambrick, bad any notice or knowledge of its existence. This question we need not decide. As we have said, the whole case is a controversy as to the priority of legal titles, at least according to the averments of the bill. — Lehman v. Shook, 69 Ala. 486; Code, 1886, §§ 1810, 1811. And a court of equity has no jurisdiction to try the relative merits of legal titles held by adverse litigants in such a suit. Any holder of such a title,, when brought in dispute, has a constitutional right to have its validity tried by a jury in an action of ejectment; and a court of law will furnish adequate remedy for testing the relative superiority of the claimants’ respective titles. In a bill to foreclose a mortgage, the only proper parties are the mortgagor and the mortgagee, and those who have acquired any interests from them subsequent to the mortgage. One who claims title from a stranger, or even from the mortgagor, anterior to the date of the mortgage, should not be brought in as a party defendant. This point was directly decided in Handle v. Boyd, 73 Ala. 282; and has been several times since re-affirmed. — McHan v. Ordway, 82 Ala. 463; Lyon v. Howell, 78 Ala. 351.

The objection is not one of multifariousness, but of jurisdiction as to the subject-matter, and may be raised at any time, or enforced by the court sua sponte, without formal suggestion.' — Lewis v. Cocke, 23 Wall. 466; Hipp v. Babin, 19 How. (U. S.) 278.

Reversed and remanded.