Henry v. Watson , 109 Ala. 335 ( 1895 )

COLEMAN, J.

The appellant, as mortgagee, filed her bill, in which was prayed an injunction to stay waste, and also for a foreclosure. At the 'time of the •filing of the bill the law day of the mortgage had not expired. A temporary injunction issued in accordance with the prayer of the bill. The respondents answered the bill, and moved for a dissolution of the injunction upon the grounds: First, that there was no equity in the bill; and, second, upon the denials of the answer. It is not necessary to consider the first ground.

After setting out the mortgage, and describing the lands mortgaged by numbers, the bill avers that the lands ‘ ‘are wild lands, with no valuable improvements thereon, and have a fine growth of large pine timber standing on it, and is valuable chiefly for said timber; * * * and that said lands, after being divested of said timber, will not, at a fair sale, bring anything near the amount of complainant’s debt, and that the respondent, Ezekiel Watson, is insolvent.” The bill further avers that John Teel and W. J. Hart, and others,'who are unknown, “with the consent and connivance of said Ez.ekiel Watson, mortgagor., are now cutting, hauling and removing the trees and timber from said above described land,” for sale and shipment, “and unless restrained and prevented, said land will be greatly depreciated in value,” &c. The answer of Ezekiel Watson, which was hied some two weeks after the filing of the bill, after fully admitting the debt and the execution of the mortgage, denies his insolvency, denies that the lands are chiefly valuable for the timber, and that the security would be insufficient for the debt. The charge of waste averred in the bill is denied in the following language : “He denies that John Teel and W. J. Hart, together with other parties unknown to oratrix, * * * with the consent and connivance of said Ezekiel Watson, mortgagor, are now cutting and hauling and re-moving the trees and timber from said above described land * * * tobe shipped and sold;” “and denies that said land will be greatly depreciated in value,” &c.

The denials of the answer in regard to the cutting and removing the timber and trees might be literally true, and yet not controvert a single averment of fact made by the bill on this question. The bill avers that certain parties, with the consent and connivance of the mortgagor, were engaged in cutting and removing the trees and timber. Even under this allegation the complainant is not confined to the moment or day of the filing of the bill. The respondent, in his answer, filed two weeks afterwards, adopts the precise language of the bill, and denies that the facts are true at that time, — the time of filing the answer, — and does not traverse the allegations of the bill. It is well settled- that a respondent must confess or traverse the substance of the averments of a bill, and that a literal denial is not enough ; nor can he shelter himself by the use of equivocal, evasive or doubtful terms. — Grady v. Robinson, 28 Ala. 289; Savage v. Benham, 17 Ala. 119; Rembert v. Brown, 17 Ala. 667.

- At the hearing of the motion the plaintiff offered in evidence several affidavits in support of the averhients of waste,, and which affidavits were excluded by the court. . The.rule in regard to the ■ admission of ex parte affidavits upon the hearing of interlocutory motions is riot so strict as formerly. Such affidavits are not evidence upon the merits of the cause; but are used merely to enlighten the mind and conscience of tbe court, upon questions calling for action in advance of legal testimony. We are not aware, however, that the rule excluding ex parte caffidavits prevails in any case where the application is to enjoin waste. — Lang v. Brown, 4 Ala. 622, 631, 632. They may also be received and read upon the hearing of a motion to dissolve injunctions issued to stay waste. — 2 Daniell’s Ch. Pr. § 1668, and authorities cited in note.

The argument of the appellant that the injunction was ordered before the filing of the bill is not borne out by the indorsement of the judge who granted the order. At most, if true, it was a mere irregularity, waived by the motion to dissolve the injunction. — Ex parte Sayre, 95 Ala. 288.

The court erred in dissolving the injunction A decree will be here rendered reversing and annulling the decree dissolving the injunction, and an order made reinstating the temporary injunction, and the cause will be remanded.

Reversed, rendered in part, and remanded.