Douthit v. Nabors , 133 Ala. 453 ( 1901 )

McCLELLÁN, C. J.

The pleading of Prank Nelson whereby he sought to intervene and be made a party to the pending suit of the personal representatives of French Nabors, deceased, against Charles F. Douthit is indifferently called a “petition” and a “bill” in the case. It is of little moment whether it was the one or the other, since, whether it was a bill or a petition, we shall assume for the purposes of this appeal that Nelson had originally no right to file it in the cause mentioned and had no right to intervene in that cause for any purpose. Yet the parties to that cause had the right and power to waive their objections to his thus coming into the case, to admit and receive him as a party to it and to litigate the equity set up in his bill and to have it determined in and as a part of the suit already pending. And this they unquestionably did. The complainants in the original bill upon the filing of this bill or petition by Nelson at once answered it, admitting all its averments. And Douthit, the respondent to the original bill, soon afterwards also answered it, incorporating in his answer a demurrer which did not challenge Nelson’s right to thus come into the case, but to the contrary assumed the right on his part to have the case made by bis petition entertained and determined in this litigation and challenged the sufficiency of his petition to present his alleged abstract equity. And some months later Douthit moved to dismiss Nelson’s bill or petition, not because he had no right to file it in the cause, but on the ground that its averments made no •case for the equitable relief he sought. This motion was made on September 8th, 1898. On that day there was a submission upon it and on Douthit’s demurrer to the petition for intervention, and both the motion and the demurrer were overruled. Some months after this, viz., on March 9th, 1899, after Nelson had been recognized as a party to the cause in the way Ave have indicated for a year, and after the evidence had all been taken, and when the cause was ready for submission for final decree upon the alleged rights of said Nelson set up in his petition or bill for intervention, the respondent Douthit for the first time objected to Nelson’s coming into, or rather, being in the cause as a party, and filed a motion “to strike the petition of the said Frank Nelson for the intervention from the the file for the reason that if he has any rights as stated in said petition, he can only assert them by independent bill and not by petition as he undertakes in this case, and because there is no fund in this cause being administered by the court in which the said petitioner is interested.” In or opinion this motion came too late, and the chancery court properly proceeded to the adjudication of Nelson’s rights just as if he had propounded them in the original bill. — Gibson v. Trowbridge Furniture Co., 96 Ala. 357; Smith v. Alexander, 87 Ala. 387.

This petition or bill exhibited by Nelson showed that he held the equity of redemption in the property mortgaged by Erharker et al. to Douthit, that Douthit in attempting a foreclosure of that mortgage had purchased at the sale under the power therein contained, that said Douthit had no authority to purchase at said sale, that, of consequence Nelson had a right to disaffirm said transaction at any time within two years, and thereupon to treat the mortgage to Douthit as still subsisting and to redeem the land by paying the mortgage debt, etc. That within two years after the said sale Nelson did disaffirm said attempted foreclosure and made a tender to Doutliit of the sum necessary for redemption, that the tender was not accepted, that the petitioner has ever since been ready to pay off the mortgage, etc., etc., and the petitioner offers now to pay it off, and to do equity, etc., etc. These facts presented a case of seasonable disaffirmance of the sale and purchase by Douthit, the declaration of disaffirmance accompanied by a tender for redemption having been made within two years from the sale; and for a decree of redemption by the chancery court. — Ezzell v. Watson, 83 Ala. 120, 123; and the demurrer and motion to-dismiss interposed by the respondent Douthit were properly overruled.

The case thus made for Nelson was supported by the evidence. It is made to clearly appear that he seasonably announced to Douthit his election to disaffirm the sale and purchase by the latter and to redeem from the mortgage held by him, and that this declaration was accompanied by what was in legal effect a tender of the amount of money due to Douthit and claimed by him under the mortgage. Douthit denied his right' to redeem and declined to accept the tender. His right to-redeem at that time as junior mortgagee was undoubted. On this state of averment and proof, the chancery court Avas entirely justified in the decree rendered, effectuating Nelson’s equity of redemption.

The evidence relied on before the chancellor to support the exception of respondent to the register’s report Avas noted in the exception by reference to certain pages of the Avritten testimony then before the court. The paging thus used in reference is not preserved in the transcript before us; and it is not practicable for us to revieAv the conclusion of the chancellor since we-are not certainly advised as to-the evidence upon AAchich his conclusion Avas reached. Taking the statement made in the exception as indicating Avhat the evidence was, Ave are not prepared to say that the report of the register is plainly and palpably erroneous. — Speakman v. Burleson, 123 Ala. 678, 682.

The decree of the chancery court must be affirmed.