Equitable Mortgage Co. v. Finley , 133 Ala. 575 ( 1901 )

SI-TARPE, J.

To dispose of the first assignment of error it is enough to point out that the decree provides for a divesture by foreclosure of all the interest in the mortgaged property which by the bill, is shown to reside in Maria Finley. So far as the bill discloses that interest is only such as came by descent to her as an heir of the deceased mortgagor. The title she sets up in her answer as derived from possession adverse to the mortgagors and all others is not assailed by the bill as an obstruction to the foreclosure sought or otherwise.

Decrees can -properly be rendered only secundum allegata, since jurisdiction is not drawn to- subjects-matter except as invoked by averment in pleading appropriate to that end. — Meadors v. Askew, 56 Ala. 584; Floyd v. Ritter, Ib. 356; McKinley v. Irvine, 13 Ala. 698; Story’s Eq. PL § 241; 3 Ency. PL & Pr. 357.

A want of averment in a bill cannot be supplied by anything that may be contained in the answer. — Bone v. Lansden, 85 Ala. 562; Lockhard v. Lockhard, 16 Ala 430; Jackson v. Ashton, 11 Pet. (U. S.), 249; Story’s Eq. Pl. § 254; 3 Ency. Pl. & Pr. 358. And proof without averment is not available for relief. — Alexander v. Taylor, 56 Ala. 60.

Cases there are wherein the court with jurisdiction acquired for one purpose'may, to afford full relief and settle the entire controversy, extend its decrees to matters other than those from Avhich the chief equity spring's; thus in Lyon v. Powell, 78 Ala. 351, a hill seeking chiefly to have a conveyance absolute in form declared a mortgage and foreclosed as such, Avas sanctioned in an attack made by it on an alleged purchase at tax sale had subsequent to the conveyance; and a like decision is found in Randle v. Boyd, 73 Ala. 282. But even auxiliary relief cannot go beyond the purvieAv of the bill, which in general includes only the matters averred and such as are incidentally involved in their proper adjustment.

We do not intimate that a claim of title independent of that of the mortgagor, though set up by one Avho must as an heir be made a party, can properly be brought under adjudication by a bill for foreclosure framed differently from this bill. The propriety of such a bill is not here in question or passed upon.

In support of the cross-assignment of error it is urged only that because of Maria Finley’s assertion of title by adverse possession and the evidence relating to it the bill should have been dismissed at least as to her.

If Maria Finley neither had nor claimed any interest in the mortgaged property except by title paramount to that of the mortgagor then no decree could properly have been rendered against her, for in general it is true as land down in Bolling v. Pace, 99 Ala. 607, that the purpose of a foreclosure suit is not to determine in Avhom title resides, but “to settle interests claimed' or existing in subordination to the mortgage.” But notwithstanding her assertion of title paramount, the mortgagee and purchaser under the mortgage could not haAm disputed the title of the mortgagors, and therefore Avould have been bound to recognize in her as an heir of the mortgagor an equity of redemption. A foreclosure of that interest was proper because necessary to the enforcement of the mortgage.

For testing the claim of title by adverse possession a court of law is the appropriate forum. That claim and the evidence relating to it Avere improperly obtruded into the case and the court had the right sua sponte to decline an adjudication of it. '

There is nothing to- support -complainant’s third assignment of error since the sum ascertained by the decree as due on the mortgage includes attorney’s fees according to its stipulations besides what is due on the principal debt with interest.

The decree will be affirmed on the appeal of the complainant and also on the appeal of the respondents.

Dowdell, J., not sitting.