McDonald v. Mobile Life Insurance

— The bill filed by the appellant, McDonald, on the 17th of December, 1873, in the Chancery Court of Jefferson county, was primarily intended to attack the validity of the mortgages executed by her to the appellee, for the foreclosure of which this suit was instituted. This bill was dismissed, on a demurrer being interposed to it, which went to the merits of the whole case, and no appeal was taken from the decree of dismissal. In that suit, it was competent for her to attack the constitutionality of the legislative act, making her a free-dealer. It was a point directly in issue, upon which depended the validity of the mortgages, and it was both material and traversable. It is as true of decrees in chancery, as of judgments at law, when rendered on the merits of a case, that they are final and conclusive, not only as to the facts or issues actually decided, but upon all points which were necessarily involved in the matter adjudicated. — 1 Greenl. Ev. § 528; Hutchinson v. Dearing, 20 Ala. 798; Chamberlain v. Gaillard, 26 Ala. 504. Appellant is concluded from raising this question in this case, being estopped by the decree rendered in the former suit, which pronounced upon the validity of the mortgages, and from which she took no appeal.

The chancellor erred, however, in not setting aside the sale of the lots which had been made under his former decree. No motion was necessary for this purpose. When the appellee purchased the property, the title acquired was only a defeasible one, liable to be divested by a subsequent reversal of the decree under which the sale took place. It was the case of a purchase by a party, and no question is presented involving the intervening rights of third parties or strangers. The principle, as stated'in Freeman on Executions (§ 347), seems fully sustained by authority: “ The party in whose favor a judgment- was rendered must, on its reversal, make restitution of all things in his control which he has acquired thereby. If lands have been set off to the plaintiff under execution, or if he has purchased real or personal estate, the defendant, on the reversal of the judgment, becomes entitled to such real or personal property. In other words, the owner of the judgment, whether he be the original plaintiff, or one to whom the judgment has been assigned by such plaintiff, purchases subject to the risk of losing title by the subsequent reversal of the judgment.” — Marks v. Cowles, 61 Ala. 299; Dupuy v. Roebuck, 7 Ala. 486; Galpin v. Page, 18 *363Wall. 374. "We believe the better doctrine to be, that this rule obtains, whether the reversal is based on ah amendable defect, or one that is incurable by such amendment.

The decree of the chancellor is reversed, and the cause remanded.