Burch v. Driver , 205 Ala. 659 ( 1921 )

As appears in the original opinion, the court held that the demurrer to the fifth, seventh, eighth, and tenth paragraphs of the bill should have been sustained; this on the theory that the bill disclosed the fact that the mortgage which complainant, appellee, sought to foreclose had been assigned to one Johnson, and therefore that complainant was not the owner or holder thereof. Complainant's bill sought to foreclose a mortgage executed to him, alleging:

"A copy of said mortgage is attached hereto and marked Exhibit A and made a part of this bill."

The copy of the mortgage exhibited with the bill shows a marginal transfer to Johnson purporting to have been executed on the day of the date of the mortgage. Upon the transfer thus shown was based the demurrer. Whatever may have been said of this ground of demurrer in the first place, our judgment now is that the decree cannot be reversed on account of the ruling aforementioned. The evidence showed without dispute that the mortgage had been retransferred to complainant long before the filing of the bill in this cause, and defendant's attorneys on this appeal have recognized this status of ownership in their briefs where, confining themselves "to the points that we think merit discussion," they say not a word on the subject of this ground of demurrer. In this state of the case it would be wholly out of line with the previous practice of this court to consider or reverse on this ground of demurrer. It is well settled that the failure of appellant to insist upon errors assigned upon the record is a waiver and abandonment thereof. 1 Michie, Dig. p. 633, § 1078, where more than fourscore cases are cited. Here we have an express waiver and abandonment.

On further examination we hold also that, though perhaps complainant might have had relief in the way of reformation on proper application to defendant, no sufficient reason is thereby made to appear why the bill, which sought also to foreclose, should have been dismissed. The better rule in all such cases is to retain the bill until the correction is made; and, if the bill was filed unnecessarily, to tax the costs against the complainant. Robbins v. Battle House Co., 74 Ala. 499; Crawford v. Chattanooga Savings Bank, 201 Ala. 282,78 So. 58. In the case at bar the bill had another and independent ground of equity for that it sought to foreclose the mortgage in which the lands pledged as security for complainant's debt were in part at least correctly described. Miller v. L. N. R. Co., 83 Ala. 274, 4 So. 842, 3 Am. St. Rep. 722.

Again, on reconsideration, the court is of opinion that the necessity for reformation of the deed and mortgage, under which defendant and complainant respectively hold, should not bar relief under complainant's bill. The point was decided in Jones v. McNealy, 139 Ala. 379, 35 So. 1022, 101 Am. St. Rep. 38. Neither Parks v. Brooks, 16 Ala. 529, nor McLemore v. Mabson,20 Ala. 137, holds anything to the contrary. Complainant's deed having been reformed to express the intention of the parties at the time of its execution, his contract is in no sense executory. Complainant has a right to have the memorials of the contracts of sale and mortgage entered into by and between himself and defendant made to speak the truth and then the obligations assumed by defendant enforced according to the true intention of the parties.

Application for rehearing granted. Judgment of reversal set aside. Decree of the circuit court, sitting in equity, in all things affirmed.

ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.