Austill v. American Freehold Land Mortgage Co.

59 So. 64, 178 Ala. 157, 1912 Ala. LEXIS 346

• Court: Supreme Court of Alabama
• Decided: May 9, 1912
• Status: Published

Opinion

DOWDELL, C. J.

On the former appeal in this case (see Tyson v. Austin, 168 Ala. 525, 53 South. 263) it was determined that the complainant’s bill was subject to the demurrers interposed, and that the court below was in error in overruling the demurrers of the defendants Tyson. After the cause was remanded, the complainant amended her bill by striking out the allegation, “And the same remains an existing liability against your oratrix,” and inserting in lieu thereof the following: “That said American Freehold Land Mortgage Company has never released complainant from the payment of said indebtedness, for which said mortgage —a copy of which is attached as Exhibit A to the original bill — was given as security, and never agreed to accept said John It. Tyson as debtor in place of complainant for said indebtedness, and the same remains an existing liability against complainant.”

The defendant mortgage company, which had formerly filed an answer admitting the allegations of the original bill, filed no further pleading to the bill as thus amended. The defendants Tyson refiled their former demurrers, and also additional demurrers-; one of the additional grounds being that the bill as amended does not show that the mortgage company, being apprised of the assumption of the debt by Tyson, ever repudiated the promise of the respondent to pay said debt, and elected to look to the complainant alone for its payment, and that at the time the bill was filed the complainant was not liable for said debt, the same being-long barred by the statute of limitations, and that therefore she had no right to file, said bill to enforce the mortgage for her protection.

The court below sustained the demurrers to the bill as amended, holding that the said amendment had not taken the bill from without the influence of the opinion of this court on the former appeal. In this conclusion the chancellor was correct, as will readily appear from a perusal of the former decision of this court, above cited, and which it is unnecessary here to repeat. Applying the principles therein declared, it appears that the bill as amended still fails to show either that the complainant has paid the mortgage debt to the mortgagee, or that she can now be compelled by the mortgagee to pay it. These defects in the amended bill are pointed out by the demurrers of the respondents, which were properly sustained.

The decree of the court below is affirmed.

Affirmed.

Simpson, Mayfield, and Somerville, JJ., concur. Anderson, McClellan, and Sayre, JJ., dissent.