McQueen v. Whetstone

HANALSON, J.

1. It was decided by the former decree in this case, that the complainant was entitled to redeem the whole land; that the administrator of Mills Nogers, deceased, was chargeable with the rents, or with the value of the use and occupation of the premises from January 1, 1877, — the tizne it was shown the said Nogers went into the possession of them, — down to and including the year 1891, when he made his final settlement and was discharged as administrator of said Mills Nogers, and that the register should also ascertain and report what rents and profits arising from said lands had been received by the respondents, from the 1st of January, 1892, down to the taking of his account.

On the decree upon the report of the register, now appealed from, the present chancellor, corrected and modified the decree of the former chancellor, — which decree was here affirmed, — to the extent of holding, that the complainant was entitled to redeem only one-third of the lands, and was entitled to credit on the mortgage for only one-third of what remained due thereon, if anything, and to one-tliird of what was due in any event, and further that she was entitled to but one-third of the rents.

The case was submitted the last time, on the sainé pleadings as on the former trial, and on the same evidence as touching the correctness of the former rulings on the right of complainant to redeem the entire premises, and her right to the entire rents; and also on other testimony taken before the register on the reference touching the matters of account referred to him. There is nothing, therefore, before the court on this appeal, either in the pleadings or in the evidence, as to the right *427 of complainant to redeem tlie entire premises, and as to her consequent rights to the entire rents, that did not appear on the former trial when these questions were passed on, which decree was affirmed. That ruling was in accordance with the general principles of equity as found in the text-hooks, the decisions of the courts of other ¡States, and of our own court. The principle recognized in that adjudication, is the same as that expressed by Fish. Mortg., § 164: “If the equity of redemption be the property of several persons as joint tenants, or tenants m common, one of them may redeem; each, as against an incumbrancer, and subject to account with his co-tenant, being entitled to possession and receipt of the whole of the rents. But it seems that one cannot redeem his moiety only; for this would be contrary to the principle that a mortgage is to be redeemed entirely or not at all.” Again; in section 246, to the same effect, the author states, that the “tenant in common is entitled to redeem the whole estate, as against an incumbrancer, and subject to an account with his co-tenant, he is entitled to the whole rent.” See also 3 Pom. Eq. Jur., §§ 1212, 1213, 1219, 1220; 2 Jones, Mortg. §§ 1055, 1063-1072; 2 Story, Eq. Jur., § 1023; Jones v. Matkin, 118 Ala. 341; McGough v. Sweetser, 97 Ala. 361; Ohmer v. Boyer, 89 Ala. 273, 279; Rainey v. McQueen, 121 Ala. 191; Lehman, Durr & Co. v. Moore, 93 Ala. 186; 17 Enc. Pl. & Prac. 948.

It is insisted by defendants, that the complainant was entitled to redeem only a third of the lands, for the reason, that her two co-tenants were barred of their right to redeem, by virtue of the fact that they neglected for more 'than two years after they attained their majority, to seek to redeem, and the chancellor so held.

Buie 84 of chancery practice prescribes that “A final decree shall not be called in question, before the court rendering it, after the adjournment of the term when rendered,” etc. The power of the court at a subsequent term, therefore, to modify or change the former decree in this cause, in the manner it was done, seems to be forbidden by this rule of the chancery court. The former decree which was final as to the equities between *428 tlie parties, was tlie law of tlie case until afterwards set aside, and in all after proceedings in the cause in the chancery court it was binding and should have been adhered to. Section 3840 of the Code, providing, that “The Supreme Court, in deciding each case, when there is a conflict between its existing opinion and any former ruling in the case, must be governed by what, in its opinion at that time is law, without any regard to such former rulings on the law by it,” is applicable to the Supreme Court alone, on a second appeal in the same case, when it may review or set aside any former opinion of its own therein. — Stoudenmire v. DeBardelaben, 85 Ala. 85. The question presented, therefore, as to the right of complainant to redeem the ivhole estate, and her right to the entire rents, is concluded by the former decree herein which was affirmed by us, and we find no occasion for reviewing said decree on this appeal. The complainant now simply seeks to have said former decree" carried into effect, against the power of the chancellor at a subsequent term to review and set it aside; and this is her right. — Herstein v. Walker, 90 Ala. 477; Ex parte Creswell, 60 Ala. 378; Owens v. Bankhead, 82 Ala. 399; Smith v. Coleman, 59 Ala. 260.

2. The mortgage was given to secure Rogers and Faber, as sureties of the mortgagor, McQueen, on eight promissory notes, each executed on the 22d February, 1876, and payable on the 22d February, 1877, and also to secure Faber for advances to be made to the mortgagor during 1876 to enable him to make a crop. In this latter aspect, the mortgage was for the benefit of Faber alone, and he was the sole mortgagee as to whatever advances were made by him to McQueen, the mortgagor. The register in his report very correctly stated, that “there could have been no liability on said Mills Rogers under this mortgage to the said Faber for advances made to said McQueen, during the year 1876, hence there could be no liability on the respondents. The personal representatives of both the said Faber and the said Rogers are parties respondent to the bill in this cause, and claim nothing for advances.” The question of advances by Faber to McQueen, so far as it af *429 fected the rights of complainant under her' redemption and the representatives of Rogers, may, therefore, be allowed to pass from view.

The notes for which Rogers was liable as one of the sureties for McQueen were, as stated, one to M. E. Pratt, guardian, for $85.64; one to W. IT. Northington, guardian, for $242.64; one to A. C. Vincent, for $233.14; one to E. M. Pratt, for $334.42; one to C. C. Smith, for $248.14; and three others to be referred to hereafter. The above described notes are found in the account of said Faber, as administrator of McQueen, allowed him as credits on final settlement of the estate as having been paid by him, and it was admitted on the trial, that said notes “were paid out of the assets of the estate of said J. I). McQueen.”

It was further admitted that said administrators did not get credit for the other three notes included in said mortgage, viz., one to J. D. Merritt, for $202.14; one to N. B. Merritt, for $230.64; and one to G. A. Northington, as administrator of McQueen’s wife, for $221.63.

The register in his report says as to these notes: “It appears to the register, that complainant should be charged with the notes embraced in said mortgage, that are not shown to have been paid out of the assets of the estate of said J. I). McQueen, deceased, to-wit [describing them as above], amounting to $656.41”; and he debits complainant with that amount in his account, as due on the said mortgage, and this ruling the chancellor sustained, as far as it went, but corrected the amount by making it $1,684 instead of $856.41 as found by the register.

In this ive apprehend both the register and the chancellor fell into error. It is admitted that the administrators of McQueen did not get credit in their account of settlement of the estate for said notes,' amounting to $656.41. It is manifest, therefore, that they had not paid them, or 'they would have taken credit for the payments, as they did for those notes they had paid, and the evidence is lacking satisfactorily to show, that Rogers ever paid either of these notes. The chancellor does not ghee his reasons in detail for the ruling he made *430 ascertaining the amount cine on the mortgage debt. He simply made the general statement: “As to the amount due on the mortgage debt at the time of the foreclosure in 1877, 1 am reasonably satisfied that the amount as found by the register is incorrect. I think the testimony of Sadler on that point is correct. I think his opportunity of knowing what was due on the mortgage is better tlian that of any other witness who testified, in the. case. He is corroborated also by the testimony of J. L. Alexander and M. Hirsclier.” He accordingly directed the register to charge complainant with'$1,684 as of March (April), 20, 1877, instead of with the.sum of $656.41 as found by the register, as remaining due on said mortgage, as of that date, and this, notwithstanding the fact, that the first five notes mentioned in the mortgage, amounting to $943.98, had been paid, as was admitted, out of the assets of the estate of said McQueen. He evidently failed to notice this admission of counsel. The question as. to crediting Rogers was not what was the amount of the debt tlie mortgage secured, but what remained due on it, and what amounts, if any, Rogers had paid thereon.

T. W. Sadler testified that “he knew that Mills Rogers and Jacob Faber held a mortgage on the lands and personal property of J. 1). McQueen in Autauga county, and that said mortgage contained a power of sale and was due on the 22d of February, 1897, for abo.unt $1,684.02.” This was in answer to the questions: “I)o you know anything about the mortgage executed- by the ancestor of complainants to said Rogers and Faber? If so, -state what you know.” The answer was a mere 'statement in description of the mortgage and the amount it -secured, and was not a statement of what was due on it as a matter of fact, for this he could not well know.

We have examined the evidence of these three witnesses, referred to by the chancellor. It is about matters resting in their memory, occurring about'20 year,: previously, and is confused and irreconcilable. We are unable to conclude from it, that Rogers ever paid either of said notes. One of them was payable to U, A. North *431 ington, administrator of McQueen’s Atúfe, for $221.63, and AAre find in Faber’s account, on settlement of the estate of McQueen, a credit of $185, which tends to support the payment of this note by Faber. J. D. Alexander, avIio was one of the administrators of McQueen, testified that these payments to G. A. Northington, were on account of the notes mentioned in said mortgage. Another of the notes was payable to N. B. Merritt, for $230.61; and Hirscher, in his testimony, states that J. I). McQueen Avas indebted to Faber for advances from $900 to $1,000, and he knew that N. B. Merritt left AA'ith Faber some notes or security that said McQueen OAved Merritt; that Faber took a note for ■betAA’een $200 and $250 as collateral, and placed it to the credit of said Merritt, and afterwards got the money on it. .All this tends to show, in the absence of the evidence to the contrary, that these notes were never paid by Rogers, and, like the other five, were improperly charged to complainant by the register.

As to all these notes signed by Rogers and Faber as securities for McQueen, it may be said, that neither Rogers nor Faber in their lifetime, nor their representatives after them, can claim anything out of the mortgaged property, unless they show they have been or may be damnified on account of their suretyship on them, and this could not possibly be the case after a lapse of more than 20 years since the maturity of the notes. Dawson v. Hoyle, 58 Ala. 44; Phillippi v. Phillippi, 61 Ala. 41.

3. There AA-ere tAventy-odd AAÚtnesses examined as to the A'alue of the annual rents of the property. About a dozen of these place it at $225 or less, some as Ioav as $100, but more at $150. Others for the complainant place it as high as $250, $300, $100 and $500. The register, from the evidence taken on oral examination of witnesses before him, Avitli opportunities of observing the fairness or unfairness Avith Avhich they deposed, their interest and prejudice or the lack of them on the one side and the other, and their opportunities for form-’ ing a correct and fair judgment, placed the annual rent at $250. The same Aveiglrt and effect ought to be accorded to his findings which would be given to the ver *432 diet of a jury. If from the whole evidence it was a matter of reasonable doubt whether the finding was correct, or if different persons equally impartial and intelligent might entertain different opinions as to the matter, the finding ought not, for these reasons, to have been disturbed. — Vaughan v. Smith, 69 Ala. 92. We are unable to conclude, on an examination of the evidence, that the chancellor was justified in setting aside the finding of the register, and fixing the rents at a lower rate per annum. Nor can we sanction the contention of the complainant that there was error in.not assessing the rents at a higher rate. His finding should stand.

4. The rule as to improvements on land by the mortgagee, as stated by Mr. Jones, is: “That the mortgagee will not be allowed for them further than is proper to lceep the premises in necessary repair. Unreasonable improvements may be of iiermanent benefit to the estate ; but unless made with the consent and approbation of the mortgagor, no allowance can be made for them. The mortgagee has no right to impose them-upon the owner, and thereby increase the burden of redemption. The improvements will inure to the benefit of the estate upon redemption, but in the meantime the mortgagee has the use of them.” — 2 Jones, Mort., § 1127; 15 Am. & Eng. Enc. Law, 825. ■ “It is unquestionably the duty of a mortgagee in possession to preserve the property in ordinary repair, and prevent it from going to waste. If he commits waste; himself, he is liable for the damage suffered by the mortgagor.” — Perdue v. Brooks, 85 Ala. 462. “Reasonable expenditures for taxes, necessary repairs, and other necessary expenses incurred on account of the estate, the mortgagee is allowed to retain from the rents and profits, and it is the balance only that can be applied in extinguishment of the mortgage debt.” Keith v. McLaughlin, 114 Ala. 63, and authorities there cited. These rules will serve the purpose of a proper ascertainment of improvements, repairs and .waste, should these questions arise on another reference.

5. The prayer for relief in the case is comprehensive, and sufficient for a decree over against respondent for whatever it may be found she is indebted for rents and *433 profits, if any, to tlie complainant. — Code, § 859; Presley v. McLean, 80 Ala. 311; Peck v. Ashurst, 108 Ala. 429, 439; Merrill v. Witherby, 120 Ala. 418; Wells v. Mortgage Co., 123 Ala. 413; 26 So. Rep. 301.

In stating tlie account, the register should make annual rests, and proceed under section 2629, in making application of partial payments. — Bryant v. Craig, 12 Ala. 355; Blum v. Mitchell, 59 Ala. 535.

We hare passed on all the questions necessary to be noticed for taking the account under the two decrees for a reference, and upon all the questions necessary to he reviewed to that end under the last decree.

Reversed and remanded.