Francis v. Jefferson County Savings Bank , 167 Ala. 548 ( 1910 )

ANDERSON, J.

This case has been here upon former appeal. — 115 Ala. 317, 23 South. 48. The equity of the bill was then fully considered and discussed at-length in the opinion of the court. The question now is: Did the amended bill cure the defects heretofore

pointed out, and because of which the original bill was adjudged to be wanting in equity? Upon the first consideration of the case, it was held, among other things, that the bill failed to aver that the respondent bank had notice of any equities of the complainant or the Excelsior Company at the time it took the mortgage from Carter. The bill was amended in this respect, so as to charge notice to Enslen, the president; but the proof failed to establish this important averment. It is true, the mortgage recites that the Excelsior • Foundry was located on the land mortgaged; but the legal title to the land was in Carter, and the evidence does not show that Enslen knew that the land had been bargained to the company, instead of Carter. On the other hand, if such had been the case, it does not appear that Enslen knew that the making of the deed to Carter was not sanctioned or authorized by the Foundry Company.

This court has also construed the agreement of December 9, 1887, and held that it did not aid the complainants as to the relief sought under the present proceeding. We do not think this phase of the case was benefited by the amended bill, and which was subject to the respondent’s demurrer.

The decree of the chancery court is affirmed. Affirmed.

Mayfield, Sayre, and Evans, JJ., concur.