THOMAS, J.
The bill was filed to compel the Bank of Hartselle to transfer certain bank stock held by Mr. Oden in his lifetime and transferred to appellee as security for debt.
[1,2]
It is immaterial whether the transaction be regarded as a mortgage or a pledge; the equity of the bill is unquestioned. The learned trial judge well states that—
“The theory of some of the cases is that the remedy at law is inadequate and incomplete, and that a court of equity by analogy will give relief on the theory of specific performance. Birmingham Nat. Bank v. Roden, 97 Ala. 404, 11 South. 883; Cushman v. Thayer Mfg. Jewelry Co., 76 N. Y. 365, 32 Am. Rep. 315; 4 Pom. Eq. Juris. (3d Ed.) §§ 1411, 1412,” and authorities collected. “* * * The jurisdiction is exercised by a court of equity * * * on the broader ground that a court of equity will take jurisdiction and try legal rights or titles when equitable rights depend thereon. In other words, when legal rights arise out of the breach of the contract, a court of equity will take jurisdiction of those questions and determine them, because the remedy at law is inadequate and incomplete, in that, equitable rights arise therefrom. * * * The insistence made by the demurrer, that the remedy at law was full, adequate, and complete, in that complainant is entitled, to the legal remedy of mandamus, is without merit. 2 Thompson on Corp. (1st Ed.) § 2445; State v. Carpenter, 51 Ohio St. 83, 37 N. E. 261, 46 Am. St. Rep. 556.” Iron R. R. Co. v. Fink, 41 Ohio St. 321, 52 Am. Rep. 84.
As an analogous ruling, see Boyett v. Hahn, 197 Ala. 439, 442, 73 South. 79, 80, where it is said that — •
“When the contract of the parties provides no method of enforcing or foreclosing a lien, a court of equity in the exercise of its- original jurisdiction may protect and foreclose such lien. 1 Pom. Eq. Jur. §§ 165-167; Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 South. 931.”
See, also, Morris v. Southern Realty & Const. Co., 203 Ala. 600, 84 South. 809.
[3]
Courts of equity have jurisdiction, for the purposes invoked, to compel cancellation of the old stock and the issuance of stock in lieu thereof to complainant. Evins, Guardian, v. Cawthon, 132 Ala. 184, 188, 31 South. 441; 16 Cyc. 114.
[4]
The decree overruling demurrer to the bill was that Alice E. Oden “must file an answer to the bill witliin ten days from” date. The Bank of Hartselle, as respondent, filed answer and cross-bill, and made as respondents thereto the complainant in the original bill (W. B. Vaughn) and Alice Oden, “both individually and as administratrix of the estate of A. A. Oden, deceased,” on which process duly issued and service was had on the said Alice Oden, who thereafter did not appear and make answer. Decrees pro confesso on the original bill and on the cross-bill of the Bank -of Hartselle were taken against -the said Mrs. Oden, individually and as administratrix, on March 10, 1919. The respective notes of testimony, for complainant and the Bank of Hartselle, show that submission was had upon the respective decrees pro confesso against said Oden in her individual and representative capacity. The order of submission for final decree recites that—
“Complainant, being called, offers the following testimony: Orignal bill; decree pro confesso. against defendant Oden in favor of complainant; admissions in the answer of the Bank of Hartselle; decree pro confesso on cross-bill of Bank of Hartselle against defendant Oden. The defendant and cross-complainant, Bank of Hartselle, being called, offers the following testimony: Answer and cross-bill; answer of complainant to cross-bill; decree pro confesso against Alice E. Oden, individually and as administratrix, on cross-bill.”
The final decree recited that W. B. Vaughn is the owner of the five shares of capital stock of the Bank of Hartselle mentioned in the original bill, is entitled to have paid to him the dividend declared on said five shares of stock, and that the defendant “Alice E. Oden, individually and as administratrix of A. A. Oden, deceased, has no right, titlé, or interest in or to said stock or to said dividends.” Order is contained therein for cancellation of original certificate of stock on •surrender, and issuance of another certifi
cate of stock in lieu thereof by the bank to complainant and in his name, and that—
The “Bank of Hartselle is .relieved of all liability for said shares of capital stock to the defendant Alice E. Oden, individually and as administratrix of A. A. Oden, deceased. It is further ordered, adjudged, and decreed by the court that the defendant Alice E. Oden, as the administratrix of A. A. Oden, deceased, pay the costs -of this suit, for which execution may issue.”
An Inspection of the record will show that In rendering the foregoing decree the provisions of Code, § 3163, to the effect that “In all cases in which decrees pro confesso are lawfully taken, the allegations of the bill are to be regarded as admitted, except in case of infant defendants, persons of unsound mind, executors, administrators, and bills for divorce,” were overlooked. Howell v. Randle, 171 Ala. 451, 460, 54 South. 563. In Thornton’s Adm’r v. Neal, 49 Ala. 590, 593, it Is pointed out that the administratrix was merely a nominal party to the suit, and no relief was asked or granted against her. And the decree pro confesso being regularly entered against all other defendants, such nominal party could not complain that no proof was taken to establish complainant’s case.
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THOMAS, J.
The bill was filed to compel the Bank of Hartselle to transfer certain bank stock held by Mr. Oden in his lifetime and transferred to appellee as security for debt.
[1,2]
It is immaterial whether the transaction be regarded as a mortgage or a pledge; the equity of the bill is unquestioned. The learned trial judge well states that—
“The theory of some of the cases is that the remedy at law is inadequate and incomplete, and that a court of equity by analogy will give relief on the theory of specific performance. Birmingham Nat. Bank v. Roden, 97 Ala. 404, 11 South. 883; Cushman v. Thayer Mfg. Jewelry Co., 76 N. Y. 365, 32 Am. Rep. 315; 4 Pom. Eq. Juris. (3d Ed.) §§ 1411, 1412,” and authorities collected. “* * * The jurisdiction is exercised by a court of equity * * * on the broader ground that a court of equity will take jurisdiction and try legal rights or titles when equitable rights depend thereon. In other words, when legal rights arise out of the breach of the contract, a court of equity will take jurisdiction of those questions and determine them, because the remedy at law is inadequate and incomplete, in that, equitable rights arise therefrom. * * * The insistence made by the demurrer, that the remedy at law was full, adequate, and complete, in that complainant is entitled, to the legal remedy of mandamus, is without merit. 2 Thompson on Corp. (1st Ed.) § 2445; State v. Carpenter, 51 Ohio St. 83, 37 N. E. 261, 46 Am. St. Rep. 556.” Iron R. R. Co. v. Fink, 41 Ohio St. 321, 52 Am. Rep. 84.
As an analogous ruling, see Boyett v. Hahn, 197 Ala. 439, 442, 73 South. 79, 80, where it is said that — •
“When the contract of the parties provides no method of enforcing or foreclosing a lien, a court of equity in the exercise of its- original jurisdiction may protect and foreclose such lien. 1 Pom. Eq. Jur. §§ 165-167; Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 South. 931.”
See, also, Morris v. Southern Realty & Const. Co., 203 Ala. 600, 84 South. 809.
[3]
Courts of equity have jurisdiction, for the purposes invoked, to compel cancellation of the old stock and the issuance of stock in lieu thereof to complainant. Evins, Guardian, v. Cawthon, 132 Ala. 184, 188, 31 South. 441; 16 Cyc. 114.
[4]
The decree overruling demurrer to the bill was that Alice E. Oden “must file an answer to the bill witliin ten days from” date. The Bank of Hartselle, as respondent, filed answer and cross-bill, and made as respondents thereto the complainant in the original bill (W. B. Vaughn) and Alice Oden, “both individually and as administratrix of the estate of A. A. Oden, deceased,” on which process duly issued and service was had on the said Alice Oden, who thereafter did not appear and make answer. Decrees pro confesso on the original bill and on the cross-bill of the Bank -of Hartselle were taken against -the said Mrs. Oden, individually and as administratrix, on March 10, 1919. The respective notes of testimony, for complainant and the Bank of Hartselle, show that submission was had upon the respective decrees pro confesso against said Oden in her individual and representative capacity. The order of submission for final decree recites that—
“Complainant, being called, offers the following testimony: Orignal bill; decree pro confesso. against defendant Oden in favor of complainant; admissions in the answer of the Bank of Hartselle; decree pro confesso on cross-bill of Bank of Hartselle against defendant Oden. The defendant and cross-complainant, Bank of Hartselle, being called, offers the following testimony: Answer and cross-bill; answer of complainant to cross-bill; decree pro confesso against Alice E. Oden, individually and as administratrix, on cross-bill.”
The final decree recited that W. B. Vaughn is the owner of the five shares of capital stock of the Bank of Hartselle mentioned in the original bill, is entitled to have paid to him the dividend declared on said five shares of stock, and that the defendant “Alice E. Oden, individually and as administratrix of A. A. Oden, deceased, has no right, titlé, or interest in or to said stock or to said dividends.” Order is contained therein for cancellation of original certificate of stock on •surrender, and issuance of another certifi
cate of stock in lieu thereof by the bank to complainant and in his name, and that—
The “Bank of Hartselle is .relieved of all liability for said shares of capital stock to the defendant Alice E. Oden, individually and as administratrix of A. A. Oden, deceased. It is further ordered, adjudged, and decreed by the court that the defendant Alice E. Oden, as the administratrix of A. A. Oden, deceased, pay the costs -of this suit, for which execution may issue.”
An Inspection of the record will show that In rendering the foregoing decree the provisions of Code, § 3163, to the effect that “In all cases in which decrees pro confesso are lawfully taken, the allegations of the bill are to be regarded as admitted, except in case of infant defendants, persons of unsound mind, executors, administrators, and bills for divorce,” were overlooked. Howell v. Randle, 171 Ala. 451, 460, 54 South. 563. In Thornton’s Adm’r v. Neal, 49 Ala. 590, 593, it Is pointed out that the administratrix was merely a nominal party to the suit, and no relief was asked or granted against her. And the decree pro confesso being regularly entered against all other defendants, such nominal party could not complain that no proof was taken to establish complainant’s case.
[5,6]
In .the instant case the decree is against the said Alice E. Oden as an individual and as administratrix of the estate of A. A. Oden, deceased, and the costs are taxed against her in her individual and representative capacities. Eor noncompliance with the provisions of Code, § 3163, as to establishment of original complainant’s right by a decree pro confesso taken against such administratrix rather than on proof, the judg-. mtent of the circuit court was clearly erroneous as binding- the estate of A. A. Oden, deceased. The error in rendition of the decree in question is challenged by appropriate assignment on the part of Alice E. Oden in,her individual capacity and not as administratrix of the estate of A. A. Oden, deceased. Rule 1, Sup. Ct. Prac. (page 1506, Civil Code); Carney v. M. C. Kiser Co., 200 Ala. 527, 76 South. 853. As to the sufficiency of the assignment of error, it will be noted that it is averred in the original bill that Alice E. Oden represented to the bank that the stock in question belonged to her and forbade the transfer thereof to complainant on the books of the bank; that the cross-bill avers that A. A. Oden died “on or about December, 1916,” and that thereafter Alice Oden was appointed administratrix of his estate;" that the said Alice Oden, either individually or as administratrix of said estafe, contends and claims that the certificate of stock was never transferred to the complainant, or that it was transferred as collateral security for a debt; “that said debt has been paid, and that by the payment of said debt title to said certificate of stock and to said dividend reverted back to her, either individually, as the widow of A. A. Oden, deceased, or to the estate of the said A. A. -Oden.” Thus is the case taken from the operation of the rule of Chavers v. Mayo, 202 Ala. 128, 79 South. 594, 596 (3), for the reason that the decree was injurious to appellant as the widow of A. A. Oden, deceased. The averments of the bill and cross-bill are such as to show, not only that the appellant assigning error had a beneficial interest in the stock in question, but that the relief prayed was such that the decree rendered cannot be affirmed in part and reversed and remanded in part as to Mrs. Oden’s individual and representative capacities. The assignment of error challenges the failure of the court to require testimony, after decree pro confesso against the personal representative, in order that the estate of A. A. Oden, deceased, be bound thereby. Eor this error, the judgment of the court is reversed and- the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McOLELLAN and SOMERVILLE, JJ„ concur.