Cudd v. Reynolds , 186 Ala. 207 ( 1914 )

McCLELLAN, J. —

The decree overruling the demurrer was rendered March 6, 1913. The appeal was taken April 4, 1913; and was returnable the first Monday beyond 20 days after April 4, 1913. — Code, § 2870. The cause was, for the first time, docketed in this court November 24, 1913, during the next term succeeding, beyond final adjournment, that in which the-appeal was taken, viz., 1912-13. The spring call of the docket of the Si-xth division for the term 1912-13 was April 21, 1913. It thus appears the final appeal was not returnable until after the Monday opening the call of the Sixth division, thus distinguishing this appeal from those dismissed in Porter v. Martin, 139 Ala. 318, 35 South. 1006, and Southern Railway Co. v. Abraham, 161 Ala. 317, 49 South. 801.

The appeal was submitted at the first call of the division after the date it was returnable. No prejudice to appellee appears to have resulted. The motion to dismiss the appeal is therefore overruled.

This bill is by appellee against appellant only, and seeks'the cancellation of two mortgages on the wife’s (appellee’s) real estate, given, it is averred, to appellant to secure the debts of the husband. — Code, § 4497. Demurrer to the bill was overruled. The appeal is from that decree.

On the face of the mortgages in question a joint and several liability, for the payment of the indebtedness thereby intended to be secured, appears to have been assumed by the complainant and L. R. Reynolds, complainant’s husband. L. R. Reynolds is not made a party to the bill; and the demurrer makes objection based upon this omission.

“It is a general rule, in suits for rescission or cancellation, that all persons whose rights, interests, or relations with or through the subject-matter of the suit would be affected by the cancellation or rescission should be brought before the court, so that they can be heard in their own behalf.”—6 Cyc. p. 319.

The status upon which the statute (Code, § 1197) operates to avoid a mortgage given by the wife on her property is that established by the fundamental fact that the instrument secures the debt of the husband. The granting of relief to a wife in virtue of the statute requires the determination that the indebtedness involved is that of the husband, only, and that her relation thereto is as surety only. Necessarily the husband is immediately interested in the solution of the inquiry thus raised; for its adjudication in favor of the wife effects to exempt, her from all liability for the debt at the suit of the mortgagee, and thus, in necessary consequence, would impose the entire liability upon the husband alone. The husband is a necessary party in such cases. See McGlathery v. Richardson Bros., 129 Ala. 653, 29 South. 665; Hawes on Parties, § 28a; 16 Cyc. pp. 188-190; Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 39 L. Ed. 792; Shields v. Barrow, 17 How. 130, 146, 15 L. Ed. 109.

While the bill does not appear to have been drawn with any very high degree of completeness and precision, its averments are sufficient to show that complainant and L. R. Reynolds were married at the time the mortgage were executed, that the land described in them was then the property of the wife, and that the indebtedness intended to be secured was not that of the wife, but was that of the husband.

Since the demurrers were erroneously overruled, and reversal of the decree must result’, it is anticipated that the bill’s structure will be much improved by appropriate amendment.

The decree is reversed and the cause is remanded.

Reversed and remanded.

Anderson, O. J., and Sayre and Somerville, JJ., .concur.