Cochran v. Miller

74 Ala. 50

Opinion

STONE, J.

— Henry L. Miller’s-liability to Mrs. Nicldes rests on an administration bond, executed in 1859. It follows, that his right to homestead exemption must be governed by the law as it then stood, and not by the constitution of 1868, nor by the statutes enacted afterwards. — Watts v. Burnett, 56 Ala. 340; Blum v. Carter, 63 Ala. 235. As against the claim of Mrs. Nicldes, neither the constitution of 1868, nor any later enactment, can exert any influence.

The homestead exemptions of force in 1859 were expressly reserved for the use of the family. — Kev. Code, § 2880 ; Code of 1876, § 2844. Mr. Miller was never the head of a family ; never had a family, under the uniform rulings of this court. He had never married, and there was. no inmate of his house dependent on him for support. Hired laborers, or servants, do not constitute a family within our statutes. Mr. Miller’s homestead was not exempt from either claim it is sought to be made subject to.- — 1 Brick. Dig. 906, §§ 228 to 231; Wilson v. Brown, 58 Ala. 62; Thompson on Homestead, §§ 46, 47.

In all the rulings in this cause, it has been uniformly held, that the mortgage claim of Cochran, trustee, Street and Jordan, beneficiaries, is paramount, and is entitled to be first paid; while the claim of Mrs. Nicldes comes iñ next, for the residuum. In this, we fully concur with the chancellors who rendered the decrees; and upon .this subject we will not farther comment.

The real subject for our consideration — the one which is made the subject of the assignments of error — is the last decree in the cause; the one bearing date January 19th, 1883. For appellant it is contended, that the decree of August 27th, 1880, taken in connection with the decretal order giving directions to thé register, bearing date October 12th, 1880, is a final decree, settling the equities of the case; and that therefore the decree of January 19th, 1883, was unauthorized, and should be reversed. If the decree of August, 1880, was and is final, then the decree of January, 1883, must be. disregarded, so far as it assumes to vary the relief of the first decree. — Ex parte Cresswell, 60 Ala. 378.

The mortgage, or trust-deed, under which appellants claim, was executed and properly recorded in the early part of the year 1875. The decree in favor of Mrs. Nickles, under which she claims, was rendered.in another county, and was not a lien on the lands when the mortgage was executed. One Ilenry had recovered a judgment against Miller on a money demand, from which the later .prosecuted an appeal to this court, giving a supersedeas bond, with Street and Jordan as his sureties. To indemnify his said sureties against loss, he executed the trust-deed, conveying to Cochran, as trustee, the tract of land on which he resided, containing about seven hundred and twenty acres; reciting that it was “ for the purpose of saving harmless and indemnifying his said sureties.” The deed contains the following, among other provisions : “ That the said Ilenry L. Miller shall be allowed to retain the use and possession of said land, until a sale of the same, or any part thereof, becomes necessary to protect and indemnify from loss his said sureties. If said judgment should be affirmed on said appeal, and the sum is not paid and satisfied by the said Ilenry L. Miller, or some one for hiiu, then the said Thomas J. Cochran, as trustee, . . shall have, and is hereby invested with, full power and authority to take possession of said land, or any part thereof, and sell the same for cash to the highest bidder,” &c. The deed further provides, that out of the proceeds of sale, the trustee shall pay, “first, the costs and expenses of this deed and such sale ;■ second, the amount of such judgment and the costs thereof.”

While the appeal was pending in this court, Mrs. Nickles had the seven hundred and twenty acres of land levied on, under exécution issued on her said decree. Miller claimed homestead of 160 of the 720 acres, and the sheriff proceeded to sell under her execution the remaining 560 acres; and she became the purchaser, receiving the sheriff’s deed therefor. The judgment of Henry v. Miller, from which the appeal was prosecuted, was affirmed in this court, and a judgment rendered against him and his sureties, Street and Jordan. The present bill was filed, after the affirmance in this court, to have the claim of Street and Jordan, sureties of Miller, declared a first lien on the property; to have the mortgage foreclosed, and the proceeds of. the property applied to the extinguishment of Henry’s judgment. It sets forth, among other things, that the debt to Henry had never been paid, and contains the following averments : “ That about the beginning of the present year, 1877, the said Henry L. Miller, reserving to himself the possession of about one hundred and sixty acres of said land [describing it], which he desires to retain as a homestead exemption, placed the other portion of said lands in the possession of said Jordan, with authority to rent out the same, and apply the rents thereof towards the satisfaction of said judg ment in favor of said Henry. . . . That complainant Jordan, recognizing the right of said Cochran, as trastee as aforesaid, to the possession of said lands, lias surrendered the same to him,” &c. According to this averment, as we understand it, Miller surrendered to Jordan only" five hundred and sixty of the seven hundred and twenty acfes of land, retaining the other one hundred and sixty under claim of homestead; and Jordan turned over to Cochran, the trustee, only the five hundred and sixty acres he had received from Miller. In the succeeding sentence of the bill is this language: “ And the said Cochran, as trustee as aforesaid, has also, under and pursuant to said deed of trust, taken quiet and peaceable possession of the aforesaid one hundred and sixty acres of land, which, for convenience of description, is hereinafter called the Exemption Tract, with a view to their being subjected to sale for the protection of complainants, Street and Jordan, in the manner authorized by said deed of trust.” Construing these averments together, they amount to a statement, that Cochran, as trustee, took possession of the entire tract, seven hundred and twenty acres, for the purposes of the trust. This question will become important hereafter.

The defendants, Nickles. and wife, in the interest of the latter, filed answers to said bill, and also a cross-bill. They also specified grounds of demurrer to the original bill. Their defense had several objects : To have the trust-deed to Cochran, trustee, set aside as fraudulent; and, failing in this, to marshal the securities, and hav.e the one hundred and sixty acres, claimed as homestead, first sold for the benefit of' Street and Jordan, before resorting- to the lands purchased by Mrs. Nickles, and to have the residuum applied to the extinguishment of Mrs. Nickles’ claim, on the theory that she, liavingacquired the equity of redemption by her purchase, was entitled to it. And in this connection, Mrs. Nicldes sought to charge Cochran, and through him the beneficiaries, Street and Jordan, with rents of the entire tract of land, from the time the original bill avers Cochran took possession of it. Miller, in answering the cross-bill of Mrs. Nickles, sought to make his answer a cross-bill to it. There was testimony taken in the cause, as we learn from the note of the testimony, and from the decree of the chancellor; but it is not found iu the record before us. We suppose it was omitted by consent, as not deemed necessary to the questions raised.

The cause, with the cross-bills, the demurrers and the testimony, was submitted for decree; and in August, 1880, the chancellor rendered his decree. He decreed the entire tract of 720 acres of land to be sold for the satisfaction of complainants’ demands, the amount to be ascertained afterwards. He next decreed, that so much of the proceeds of the 560 acres, bought by Mrs. Nicldes, as remained after satisfying the demand secured by the trust-deed, costs, &c., be paid to Mrs. Nicldes. He then dismissed Miller’s cross-bill to Mrs. Nicldes’ •cross-bill, at his costs. The decree ordered a reference to the register, to report to the next term of the court; and directed him to state an account of Cochran’s trusteeship, and to charge him, as such trustee, “ with the rents by him received for lands by him taken possession of as such trustee, for each year including this year,” and allowing him certain credits; and to report suitable allowance to Cochran as trustee.

A petition was then filed by Mrs. Nicldes, asking a modification of the directions to the register, so as to direct him “ to ascertain what was the reasonable value of the rent of all said lands, from and including the year 1877, down to, and including the year 1880, and to charge said trustee with that amount,” with certain allowances as credits. This petition was filed in connection with certain exceptions filed by Mrs. Nicldes to the register’s report, made under the decree of- August, 1880. In October, 1880, the chancellor decreed on said exceptions, and on said petitions; overruled the exceptions, and confirmed the report in all respects, “ with the exception of so much of the report as refers to the rents of the land in said bill described.” As to the rents he decreed as follows: “ The register will ascertain and report liow many acres of the land bought by Mrs. Nicldes at the sale made by the sheriff were capable of, and fit for cultivation, for each of the yeai’s, 1877, 1878, 1879, 1880.” He thén directed that the register ascertain the yearly rental value of said lands for each of said years, and ascertain the necessary expenses incurred by the trustee during each of said years in improvements, repairs, and the payment of taxes; and to report at the next term. Under this amended order of reference, the register made his report to the July term, 1881, which was then filed, and a motion made by complainants to have it confirmed. This motion was continued, with leave to Nicldes and wife to file exceptions thereto, and with leave to bring the motion to confirm, and the exceptions thereto, before the chancellor at chambers. At the July term, 1882, Nicldes and wife moved the court for leave to'file exceptions to said report, and for an order charging the trustee with the rental value of the homestead, from 1877 to 1881, inclusive; and they filed their exceptions, nine in number, with their said motion.

At said July term, 1882, Nickles and wife again submitted said cause for decree, on pleadings and evidence. The com■plainants, Cochran and others, in bar of a further hearing, except on the register’s report, submitted, and relied on as final, the decrees of August and October, 1880, and contended that the chancellor could not review nor reconsider the questions ruled on in those decrees. The chancellor, having'taken the case under advisement, rendered his decree at the January term, 1883. In that decree, he considered the sufficiency of the original bill, and sustained some of the grounds of the demurrer filed thereto. The effect of his ruling was, that the original bill, to be sufficient, must be amended, in the matter ■pointed out by him. He also detected errors, or irregularities,, in the matter of putting the original bill at issue. He left the case open for the needed amendments, but declared that the complainants in the original -bill had the first and paramount lien. He ruled that Miller, the common debtor’, was entitled to no homestead exemption, and that the complainants, having charged in their bill that Cochran, the trustee, had taken possession of the entire tract of land, would not be allowed to disprove their own averment, by showing that he did -not, in fact, take possession of the one hundred and sixty acres, claimed by Miller as homestead. He further declared, that the register, in stating the account with Cochran, trustee, would charge him with the rental value of all the lands, including that claimed as homestead, and the home-house, from and including the year 1877, until the coming in of the report, with interest on each year’s valuation, and certain credits, not necessary to be here mentioned. From this decree the present appeal is prosecuted by the complainants ; and, as we have said, the main question argued before us, renders it necessary for us to determine whether the decree of August, 1880, was final, in that sense which would authorize an appeal therefrom.

It was declared in this court, at an early day, and has ever since been followed, that a decree is final, when it ascertains all the right of the parties in litigation, although there may be a reference to the register, to ascertain facts necessary for an account, and to state the account between the parties. Weatherftrrd v. James, 2 Ala. 170; Bank of Mobile v. Hall, 6 Ala. 141; Ansley v. Robinson, 16 Ala. 793; Jones v. Wilson, 54 Ala. 50; Broughton v. Wimberly, 55 Ala. 549; Wyatt v. Garlington, 56 Ala. 576; Hastie v. Aiken, 67 Ala. 313; Smith v. Coleman, 59 Ala. 260.

It is objected that the decree of August, 1880, was not final,, because it did not dispose of the demurrers to the original bill. True, they are not mentioned in the decree; but there is a decree, granting relief to complainants. Such, decree could not be íendered, without overruling the .demurrer in effect. Wyatt v. Garlington, 56 Ala. 576. See, also, Walker v. Cuthbert, 10 Ala. 213; Eastland v. Sparks, 22 Ala. 607.

It is further objected against the finality of the decree, that the chancellor failed to rule on the prayer of the cross-bill of Mrs. Nickles. This is answered by the record itself. The decree granted relief to her, which she could only obtain under her cross-bill.

In the decree of January, 1883, the chancellor comments on certain irregularities in the preparation of the cause, such as the failure to put the original cause at issue as against the defendants Miller and Henry. We find decrees pro confesso were properly taken against them. But, if this had not been done; it is difficult to conceive how it could affect any of the parties really interested in this controversy. All the parties interested in the controversy raised on this record, are the complainants and Nickles and wife. Probably, if an appeal had been taken in time from the decree of August, 1880, on proper assignment of error that the cause had not been put at issue against a material party, and sustained by the record, the decree would have been reversed. But we do not understand this to be the rule, except in favor of persons not sui juris, when a final decree has been rendered, and acquiesced in until after appeal is barred, if all the parties really affected by the decree have had their day in court.- — Craft v. Russell, 67 Ala. 9; Brewer v. Browne, 68 Ala. 215; Cresswell v. Jones, 68 Ala. 420 ; McCall v. McCurdy, 69 Ala. 65. Mere irregularities do not render the decree void.

The chancellor, in his decretal order of January, 1883, comments on the failure of the original bill to aver that Street and Jordan had paid the debt to Henry, for which they were the sureties of Miller. This was not necessary to the equity of the bill as framed. Their liability having become fixed by the affirmanc’e of the judgment in this court, they were authorized to have the trust-deed executed, or foreclosed, and the proceeds of the property applied to the payment of the debt to Henry. Brandt on Suretyship, § 193, and note 3. If it be objected that, pending the litigation, Street and Jordan paid Henry his claim, and thereby became entitled to the proceeds of the mortgaged property, instead of Henry, to whom the bill prayed its payment, this, at most, presented a question of supplemental matter, which, under our statute, could and should have been brought in by amendment of the bill. Its failure did not render the decree void, but was at most an irregularity, which can not affect the validity of a final decree, from which the right of appeal is barred.

Recurring to the decree of August, 1880, we hold it settled the equities between these parties, and was so far final that it would have supported an appeal to this court. “ The test of the finality of a decree, which our decisions have prescribed, is not whether the cause is still in progress in the Court of Chancery, awaiting further proceedings, which may be necessary to entitle the parties to the full possession and enjoyment of the rights it has been declared they have; but, whether a decree has been rendered settling those rights.” — Jones v. Wilson, 54 Ala. 50; Broughton v. Wimberly, 65 Ala. 549; McLemore v. Nuckols, 37 Ala. 662. But a decree may be partly final, and partly interlocutory. — Malone v. Marriott, 64 Ala. 662. If it settle all the equities between the parties, it is, to that extent, final. If it is necessary to take an account, or other proceedings must be had to carry it into effect, to this last-named extent it is interlocutory, and may be moulded, modified or altered by the chancellor, ■ as any other interlocutory decree may be. The principles of relief can not be altered, for they are final. Directions for carrying the decree into effect may be modified, for they are interlocutory.

Applying these principles to this case, the chancellor had no authority to consider the demurrers, nor the sufficiency of the bills. They had passed into a final decree. And this court can not consider them, because the decree pronounced upon them was barred, before the present appeal was taken. The giving of directions to the register, in the matter of carrying the decree into effect, presents a different question. As to these, the decretal orders of August and October were interlocutory. These the chancellor had authority to modify at any time before final decree on the account. In this aspect of the decretal order of January, 1883, we find nothing to object to. As we have shown, the original bill avers that -Cochran, as trustee, took possession of the entire seven hundred and twenty acres of land, for the purposes of the trust. This estops complainants from disproving it, and renders the trustee liable for the rent of the whole tract. Complainants have a rightful, paramount claim on the whole tract, for their indemnity against the debt to Henry. Mrs. Nickles has a secondary claim on five hundred and sixty acres of the land, subordinate to that of complainants. This presents the conditions which call for a marshalling of securities. — -1 Wait’s Act. & Def. 353. What is claimed as the homestead exemption should be first sold and exhausted under complainant’s mortgage, before resorting to the five hundred and sixty acres purchased by Mrs. Nickles.

Under our chancery system, there may be two final decrees in one and the same cause, and there may be, and frequently are, two appeals therefrom. In foreclosure and kindred suits, when a decree is rendered, settling the equities, this is final, so as to.authorize an appeal, although a reference is ordered to take and state an account, preparatory to the execution of the decree; and after the reference is held, reported upon, and the chancellor decrees thereon, then a second final decree is rendered, from which appeal may be prosecuted. On such second ary appeal, questions may be raised, growing out of instructions to'the register, the introduction of testimony before him, and exceptions filed to his report. Nut, to authorize an appeal in -this second phase of the case, the decree on the matters referred must be final. "We have no statute authorizing an appeal from interlocutory proceedings of this class. The decree of January, 18S3, is not final, either in substance or form. It simply declares rules for the after government of the register, which, so far as this record discloses, have never been acted on. This is not a final decree. If the object of the present appeal is to get rid of so much of the decree of January, 1883, as goes behind the final decree of August, 1880, appeal, at this stage of the proceedings, is not the remedy. — Ex parte Cresswell, 60 Ala. 378.

Appeal dismissed.