Morris v. Fidelity Mortgage Bond Co. , 187 Ala. 262 ( 1914 )

ANDERSON, O. J.

The holder of the note and mortgage is not required to.first foreclose the mortgage, but may bring his action on the note alone.—Jones on Mortgages, § 1220; Cullum v. Emanuel, 1 Ala. 23, 34 Am. Dec. 757. A mortgagee may, in the absence of an agreement to the contrary, proceed on all of his remedies at once, or use such of his remedies as will give him the easiest relief against the mortgagor or a subsequent incumbrancer or assignee.—18 Eng. Rui. Oas. 434. (1) He may sue for the debt; (2) he may sue for the property; and (3) he may foreclose.

While the mere purchase of land subject to an outstanding mortgage will not render the purchaser personally liable for the mortgage debt, yet if he assumes the payment of the mortgage debt as a part of the consideration of the purchase he becomes personally liable for the mortgage debt; and the payment of the same can be enforced by the mortgagee or his assignee, upon the theory that the obligation to the mortgagor to discharge the debt was made for the benefit of the mortgagee as well as of the mortgagor.

At one time the mortgagee’s right to enforce the collection of the debt, against the purchaser from the mortgagor, was equitable; but tiie modern rule in most of the states- is to allow the mortgagee to recover in an action at law against the purchaser.—Jones on Mortgages, §§ 710-762, inclusive.

We think that the complainant can maintain a creditor’s bill to set aside the conveyances in question, notwithstanding it is not a judgment creditor, and is a creditor with a lien. In other words, we do not think the rule, as to the right to file a creditor’s bill, is confined to judgment creditors and other creditors who have no lien; but are of the opinion that section 3739 of the Code of 1907 was intended to let in all creditors other than judgment creditors who were provided for by section 3735.

Formerly, the right was conferred upon the judgment creditors only, as provided by section 3735; but section 3739 was afterwards added to the Code, and said statute, as previously construed by this court, gives the right to maintain a creditors’ bill to all creditors, whether with or without a lien.—Hall & Farley v. Alabama Co., 143 Ala. 480, 39 South. 285, 2 L. R. A. (N. S.) 130, 5 Ann. Cas. 363; Lehman v. Meyer, 67 Ala. 403.

The bill was not subject to a demurrer because it sought alternative, or what is termed inconsistent, relief. It, in each alternative, relates to the same transaction and concerns the same subject-matter.—Code, § 3095; Smith v. Young, 173 Ala. 190, 55 South. 125.

As a general rale, courts of equity should not be called upon to do vain and useless things, and a conveyance by a debtor of some of his property will not be disturbed if it is not substantially all, or if he retains enough to indemnify his creditors.

The bill avers that the lots conveyed by Morris to his wife were substantially all of his property, coupled with the averment of a belief in the insolvency of the said Morris. This averment might suffice, if the bill did not show that he owned, other property, and, from aught that appears therefrom, the respondent is the owner of the property embraced in the complainant’s mortgage ; and it may be ample to satisfy the complainant’s demand, whether it seeks the collection of same by foreclosure or by a judgment and execution in a court of law.

Pleading, upon demurrer, must be construed more strongly against the pleader, and from aught that appears from this bill the property embraced in the mortgage may be ample to satisfy complainant’s demand, and its attempt to subject the lots conveyed by Morris to his wife may be a useless attempt to harass and oppress these respondents.

The chancery court erred in not sustaining the respondents’ second ground of demurrer to the bill of complainant, and the decree is reversed, and one is here rendered sustaining said demurrer.

The bill avers that the lots conveyed were subject to complainant’s debt, which negatives the idea that they constituted the grantor’s homestead; for, if they were the homestead, they were not subject to the payment of his debts, and no point is made as to the manner of averring this fact. The fifteenth ground of demurrer takes the point that the bill does not aver that the property conveyed was not the homestead. If this should he averred in the complaint, or is defensive matter, a point we need not decide, for the reason that the bill does, in effect, aver that it was not the homestead, and no point is made by the demurrer as to the manner of making this averment.

Reversed, rendered, and remanded.

McClellan, Sayre, and de Graffenried, JJ., concur.