Bailey v. Jefferson , 186 Ala. 214 ( 1914 )

SAYRE, J. —

This is a different bill, though the case presented is much the same as that considered in Sadler v. Jefferson, 143 Ala. 669, 39 South. 380, wherein the effort on the part of complainants was to assert the rights alleged in the present bill. We may assume that the bill in that case has been abandoned, and that now complainant seeks to renew the controversy on terms of better advantage. We will not gu over again the ground covered by the opinion in that case. There are some difference which may be roughly stated as follows: This bill is filed by Jefferson in his sole name and for his sole benefit, his tenant in common, Swayne, having dropped out of the case. The averment now is that C. B. Bailey has conveyed his interest in the land to his wife, Annie D. Bailey, she assuming her husband’s debt to the British & American Mortgage Company, and she, along with her husband, is now made a party defendant. It is further averred that W. E. Bailey, at the request of Annie D., has paid to the mortgage company the debt secured by its mortgage; and the bill here, omitting the mortgage company as a party defendant, seems to make W. E. Bailey, as assignee of the mortgagee company, a party defendant, averring that he took with no-. tice of complainant’s asserted rights in the premises. The bill seeks to have the mortgages to Sadler and to the mortgage company canceled, the former as having-been fully paid, the latter as constituting no lien upon complainant’s property, because not made by him, or, in the event it should appear that Saddler’s mortgage has not been paid in full, then that as to that mortgage complainant be admitted to redeem. The contents of the bill will more fully appear in the report of the case.

Swayne is not a necessary party to his cotenant’s bill to redeem.—McQueen v. Whetstone, 127 Ala. 417, 30 South. 548.

Nor is Sadler a necessary party, he having parted with his interest.—Raisin Fertilizer Co. v. Bell, 107 Ala. 261, 18 South. 168.

There has been no foreclosure of complainant’s mortgage to Sadler. The bill avers that down to and including the year 1905 — that is, within eight years of the filing of the present bill — complainant has made annual payments under an agreement with Sadler, subsequently acquiesced in and acted upon by his successors in interest, which agreement, in legal effect, amounted to a mere “method of adjustment by which the mortgage debt was to be paid.”—Sadler v. Jefferson, supra. Meantime, unless, indeed, the mortgage debt has been satisfied by these payments and other credits to which complainant avers he is justly entitled, nothing has occurred to affect the reciprocal equitable rights, of the parties, the right of defendants to foreclose, the right of complainant to redeem.

During a part of the time, it is true, defendants have been in possession of a part of the land. But the bill seems to mean that complainant is now in possession of the entire tract, and, however- that may be, the averment is clear that defendants’ partial possession was with the consent of complainant, and in any event, if there was the agreement in respect to the method of adjustment by which the mortgage debt was to- be paid, as alleged, the payments made in pursuance thereof and their acceptance constituted periodical assertions by complainant and recognitions by defendants of the right of redemption, and we are unable to see that the inquiries as to laches, staleness of demand, and statute of limitations, raised by the demurrer and defendants’ brief, present any obstacle to the redemption sought by the bill.—Waldrop v. Friedman, 90 Ala. 157, 7 South. 510, 24 Am. St. Rep. 775.

We do not find that other suggestions contained in appellants’ demurrer have merit or require special treatment, and the chancellor’s decree overruling the demurrer will be affirmed.

Affirmed.

Anderson, C. J., and McClellan and Somerville, JJ., concur.