King Lumber Co. v. Spragner

“Independent of our statute for the quieting of titles and the determination of. claims *567to real estate (Code, § 5443 et seq.) courts of equity have jurisdiction to cancel and remove a specially described cloud upon the complainant’s title, when the owner is in possession, and when the evidence of the alleged cloud is not void on its face, and extrinsic evidence is necessary to show its invalidity.”' — Pomeroy’s Eq. § 1399; Jones v. deGraffenreid, 69 Ala. 145; Daniel v. Stewart, 55 Ala. 278; Plant v. Barclay, 56 Ala. 561; Bank v. Elkins, 165 Ala. 628, 51 South. 821. We think that the present bill contains equity and conforms to the above-quoted rule. It is not a bill under the statute, and did not have to contain the averments pointed out by the respondents’ demurrer, and which said demurrer was properly overruled.

A mortgage, originally supported by an adequate consideration, ceases to be an enforceable security when the consideration fails. — 27 Cyc. 1055. The bill avers, and the proof shows, an utter failure of consideration; that is, a failure by the mortgagee to build the house, and for which the mortgage and notes were given.

We also think that the proof shows the possession of the complainants when the bill was filed. There was no possessio pedis of the lots and the possession therefore followed the legal title which was in the complainants.

Nor Avas the bill bad for failing to show Avherein the notes Avere not negotiable. Moreover, if the notes were negotiable and the respondents were bona fide purchasers, this was defensive matter, but which fact did not exist as the notes are not only not negotiable, but the respondents knew the consideration for which they were given when acquiring same from the mortgagee Cash.

The Avife signed the notes and mortgage, and, although she may have done so only to' relinquish her marital rights to the property, still she was a proper, *568if not necessary, party, and the chancellor did not err in granting the “complainants” relief. On the other hand, if the decree was in favor of the husband only, and did not include the wife, the decree was valid, as the chancellor could grant relief to one complainant, and not to the other under the terms of section 3212 of the Code of 1907.

A decree was rendered against S. P. King only, and who is the only appellant, and he can take nothing by the overruling of his demurrer making the point that the King Lumber Company was not sufficiently described.

The decree of the chancery court is affirmed.

Affirmed.