Tait v. American Freehold Land Mortgage Co. , 132 Ala. 193 ( 1902 )

MoCLELLAN, C. J.

— The title of the mortgage company through its mortgage executed by Charles E. Tait in 1888 is a perfect title, evidenced by muniments in all respects regular and valid, as -against the deed executed by said Charles ¡to Narcissa Tait in 1899. The deed is, therefore, not a cloud on complainant’s title, and the present bill has no equity to a cancellation of it -as a cloud on title.

Whether the bill has equity to ithe end of subrogating the complainant to the lien of the mortgage executed by Charles E. Tait io the Joneses, and which mortgage was paid off by complainant, depends upon whether it avers that the mortgage executed by mid Charles E. to Narcissa Tait, which was secondary to the Joneses’ mortgage, was at the time of the execution of the mortgage to complainant, a subsisting encumbrance on the land, -and entitled to priority of satisfaction apart from the doctrine of 'subrogation. We find no such averment in the bill. It does appear by the bill that on the same day Charles E. Taiit executed the mortgage to the Joneses, he also executed a mortgage to Narcissa Tait subject to the lien of the Joneses’ mortgage, that said mortgage to Narcissa Tait was duly recorded in the office of the judge of probate prior to March 5ith, 1887, that on the day just named James T. Beck -made the following entry -on the record of said mortgage: “This mortgage is satisfied in full and so entered by me on the authority of Mrs. Narcissa Tait, mortgagee. This 5th- March, 1887. J. T. Beck. Authority pasted herein;” that the “authority” under which Beck acted and to which he refers aw above indicated was the following writing: “To Honorable Janies T. Beck, Judge of the Court of Probate of Wilcox County, Alabama: You will please enter satisfaction and payment in full of the mortgage made and executed by Charles E. Tait and hi® wife, Adali L. Tait, to me, dated the 8 th February, 1886, and recorded in book of mortgages No. 6, pages 490, 491 and 492, and let this be your authority for so doing. This 4ith day of Hard), 1887. Narcissa Tait. Attest, S. IV. McDowell;” that this writing was signed or purported to be signed by said Nar cissa Tait, and witnessed by one S. W. McDowell, and, to quote the bill, that “said Narcissa. Tait and S. TV7. McDowell have been examined as witnesses in said ejectment suit (action by said Narcissa Tait against this complainant for the land involved here) on depositions tó interrogatories, and said Narcissa avers in answer to questions as to her signature to said instrument of writing requesting said James T. Beck to satisfy the mortgage of the 8th of Februry, 1886, given on her said lands by Charles E. Tait and never authorized any one to execute the same for heir, and said S. IV. McDowell in answer to questions as to his signature, as witness to «said instrument, testified that he never did sign said instrument as a witness and knew nothing of it until it was (-ailed to his attention shortly before his examination as a witness in said cause.” These are all the facts averred in the bill in any way on the issue of the satisfaction vel non, of said mortgage. There is, however, this further, toward the close of the bill: “Your orator further complaining, shows unto your Honor that in the event your Honor should find that said instrument of writing purporting (to be executed by Narcissa Tait'on the 4th day of March, 1887, requesting said Beck to mark said mortgage of said C. E. Tait to Narcissa Tait 'satisfied, was not executed by Narcissa Tait, nor by any one authorized to bind her, and that your orator was thereby deceived, in being led to rely upon the same as a valid satisfaction of said mortgage, that your oraitor stands in such relation to said property and said Narcissa Tait,” etc., etc., that orator is entitled to subrogation to the lien of the Joneses’ mortgage, etc., etc. • From the foregoing averments of the bill it clearly appears that on the face of the mortgage record the instrument is regularly marked satisfied by or for Mrs. Tait, the mortgagee; and there are. no averments in the bill Which in anywise impeach this entry of satisfaction. The averment that Mrs. Tait has said, or even has sworn in another forma, that the entry of satisfaction was not authorized by her, is by no means the averment that, the record to the contrary notwithstanding, the mortgage has never in fact been satisfied and was at the time 'complainant’s mortgage was executed and still is an incumbrance, on the land superior to the lien of complainant's mortgage, and to all claim it has upon the land except, that which it is seeking to assert here by way of «subrogation. At most the bill shows that Mrs. Tait claims that the. entry-of satisfaction is spurious; and without in any way asserting that it was spurious, the complainant asks the court to grant it certain relief in the event it should he found to he spurious by the -chancellor. No issue of fact is tendered. It is not averred that the entry is inoperative. Every averment in the bill may be taken as confessed, or admitted by the answer, or proved on • the hearing, and yet it would not appear that complainant is entitled to the relief prayed or to any relief in equity. Every issue of fact tendered 'could be responded to by the court without determining whether Mrs. Tail’s mortgage stands in complainant’s avay or necessitates for his protection that lie be subrogated to the lien of the .Joneses’ mortgage. The chancellor is asked to grant, certain relief in the. event- and only in the event he finds a certain fact ito exist, and that fact is not alleged to exist; and not being alleged to exist he is under no duty to determine whether it does exist or not, indeed he has no jurisdiction to determine its existence rel non. The bill, we repeat, is without equity.

But it is insisted that it -can be amended in the particular we have been discussing so as to give it equity, and that, therefore, the motion to dismiss for the want of equity should not be granted. ITow do we know it can be so amended? How can we say that complainant h'ould truthfully allege that the satisfaction of the mortgage was unauthorized? There is absolutely nothing in the hill as it stands that carries any assurance that ‘such an amendment could be made. And it is only when it appears from the bill thait amendments can be made -which would entitle the complainant to relief that such amendments, will be considered as made, and the motion to dismiss for want of equity will be denied. It is only where facts are illy pleaded, so that a demurrer would lie, but yet they do appear in some manner by the bill that the principle invoked applies. If the rule were otherwise than that it must appear by the averments of the bill tha¡t it may be so - amended ■as to warrant relief, or were, a® it is claimed to be by counsel for appellee, that no bill should be dismissed for want -of equity which can possibly be amended by adding averments not hinted of in it, no bill could ever be dismissed on such motion. The true rule is declared in Seals v. Robinson, 75 Ala. 363, and has béen several times recently reaffirmed by this court.— Gardner v. Knight, 124 Ala. 273.

It is contended for appellee that the infirmity of the bill which we have been considering is cured by what is called the admission of the answer. Such an infirmity 'can never be -cured by the answer. An answer may admit averments in a bill -so as to. relieve the complainant of the burden of pi’oving them, but its allegations can never supply jurisdictional averments omitted from the bill, it can never inject equity into a bill which has none on its own allegations. Neither statements in an answer nor proof of necessary facts can warrant -relief unless such facts are averred in the bill: Proof in any form is as abortive without necessary averment in the bill as the failure to prove necessary averment. Moreover, the answer here contains no admission of any -averment of the bill -as to the entry of satisfaction on the record of the mortgage being unauthorised and null, for, as we have seen, there is no such averment in the bill. It does not contain a statement that the entry was not authorized by Mrs. Tait and the answer is sworn to; but as this was not an admission of an averment in the bill, the statement -as pleading is of no value to complainant, and -as the answer is not mentioned in the note of testimony, nor even in the order of submission, it is no evidence of that fact; and no testimony was taken on the point. So that there is neither averment nor proof of the invalidity of the entry of satisfaction on the record of Charles É. Tail’s mortgage to Narcissa Tait. With that entry standing unimpeached, the complainant not only had no right of subrogation in equity to the lien of [the Joneses’ mortgage, but, on the other1 hand, the mortgage company had a plain, adequate and complete remedy, or defense, at law against the action of ejectment prosecuted by Mrs. Tait.

We are of opinion that if complainant can allege and prove that the entry of satisfaction on the mortgage record was unauthorized and nugatory, it would be entitled to the satisfaction prayed for on that and the other averments of the bill and evidence shown by this transcript.—3 Pom. Eq. Jur., §§ 1211, 1212; Faulk v. Galloway, 123 Ala. 325.

The chancery court erred in its decree granting the relief. The bill «hold have been dismissed for want of equity. The decree below will be reversed; and in the exercise of our statutory discretion to render the decree the lower court should have rendered or to remand the cause, we adopt the latter course. Let the cause be remanded.

Reversed and remanded.