Rosenau v. Powell

McCLELLAN, J.

— This is the second appeal in this cause. — Rosenau v. Powell, 173 Ala. 126, 55 South. 789. The court continues satisfied with the conclusions there announced.

The bill was exhibited by Mrs. Powell against D. L. Rosenau, William Riggs, and M. B. Thompson. The purpose and object of the bill as finally amended was to cancel a certain deed, executed by complainant and her husband, John C. Powell, to Rosenau, and, under this theory of decreed relief, to effect an accounting of and for property received by Rosenau, whose then relation to complainant’s husband was that of mortgagee; to have ascertained the true amount of the mortgage debt; to charge Rosenau with the rents and profits of the land (80 acres) after the possession passed to him and before his sale thereof to Riggs, who subsequently mortgaged the land to Thompson; to ascertain the value of the lands at the time of sale to Riggs, and,.if Riggs and Thompson were found to be innocent purchasers for value, to require Rosenau to account, for the value so- ascertained; and, after deducting the amount due on the mortgage debt, to effect redemption by complainant and cancellation of the mortgages described in the bill, and a personal money decree over, if a balance was found due. The court below concluded to these general results: The cancellation of the deed, as prayed; the adjudication that Riggs and Thompson were innocent purchasers for value and without notice of complainant’s equities; the cancellation of the mortgages, as prayed; the rendition of a personal money decree against I).. L. Rosenau for $1,987.25, as ascertained on the reference held by the register.

This cause was submitted November 26, 1912, and brief for appellant was delivered into the court with the transcript, according to rule 10 of Supreme Court practice. Seven errors Avere assigned on the record. In the brief filed on the submission for appellant the entire .insistence for error affecting the decree in the cause was, in substance, this: That the complainant, as the Avidow, not suing as the personal representative or executor of the estate of her deceased husband (the mortgagor), was not entitled to a money decree against Rosenau, in accordance with the theory of prayer, to that end, of the amended bill.

On January 29, 1913 — approximately tAvo . months after the submission of the appeal — a “supplemental brief for appellant was filed. This supplemental brief contains an extended original discussion that is referable to some of the assignments of error, particularly that questioning the correctness of the register’s finding, on reference, in respect of the amount affording the basis of the sum awarded in the money decree rendered against Rosenau.

In L. & N. R. R. Co. v. Holland, 173 Ala. 675, 693-696, 55 South. 1001, it was ruledj after full consideration, that a failure of an appellant to insist upon assignments of error in the brief filed on submission in this court was a then effective waiver of all assignments not' insisted upon, and that a retraction of the waiver could not be subsequently effected by the filing of a supplemental brief, insisting upon assignments not urged in the brief, for appellant, filed at the time of submission in this court. That wholesome rule has due application in this instance, and it is applied to the end that consideration here can only be given the single question urged and argued, as stated before, in the brief filed at the time this appeal was submitted.

It is manifest that the single proposition thus urged should have been raised by demurrer to the amended (by the addition of special prayer) bill. None appears in the transcript. Indeed the respondent, Rosenau, after answer filed, made default by his failure to answer interrogatories propounded to him by complainant, and decree pro confess© was properly entered against him. — Rosenau v. Powell, 173 Ala. 123, 55 South. 789.

The legal basis of a money decree in this character of cause is the value or proceeds of the lands sold by a trustee ex maleficio to an innocent purchaser, and the profits with interest, derived by the trustee from the land pending his possession and before the sale to such purchaser, less the amount of the indebtedness secured by the mortgage or mortgages. The theory of the decree does not of course comprehend the recovery of the value of property taken during the life of a deceased husband; but in equity’s process of adjusting and enforcing the rights involved, the values at any time received by the mortgagee and due to be credited on the mortgage debt are necessarily ■ factors in determining the amount of the mortgage debt, whether it has been satisfied or not.

The decree is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and de Graffenried, JJ., concur.