Saia v. Kronenberg

134 So. 634, 223 Ala. 19, 1931 Ala. LEXIS 87

• Court: Supreme Court of Alabama
• Decided: May 14, 1931
• Docket: 6 Div. 808.
• Status: Published

Opinion

ANDERSON, C. J.

The original mortgagee is not a necessary party to a bill filed to foreclose the mortgage by his assignee when no deficiency decree is sought against him as assignor of the mortgage. Rountree v. Satterfield, 211 Ala. 464, 100 So. 751. But the present bill seeks a deficiency decree over against the mortgagors and the assignor, the mortgagee, as well.

Whether or not good pleading should require that the nature of the indorsement or transfer of the notes and mortgage be set out, or so describe the same as to enable the court to determine whether or not the said assignment rendered the assignor a guarantor and liable for the debt, the bill does aver that the mortgagees, as indorsers and transferors, are liable for the debt. This, of course, rendered the Saias, the mortgagees, necessary parties. This averment is not challenged as a conclusion by the demurrer, nor does any ground of the demurrer specifically challenge the failure of the bill to set out or describe the indorsement.

As the bill contains equity, it was not subject to the general demurrer, and the other grounds must have specifically set out the defects sought to be reached. Section 6553 of the Code of 1923.

The decree of the circuit court is affirmed.

Affirmed.

SAYRE, THOMAS, and BROWN, JJ., concur.