Opinion
6 Div. 387.
December 8, 1938.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
W. L. Acuff, of Ashville, for appellant.
The bill should allege whether the respondent is a corporation, partnership, unincorporated association, or in what capacity it is sued. Moore McGee v. Burns Co., 60 Ala. 269; Shepherd v. Birmingham Trust Savings Co., 233 Ala. 320, 171 So. 906. The deed of trust provides the manner in which a successor trustee shall be appointed, and appointment must be in accordance with that provision. Complainant was not so appointed. 65 C.J. 575, 581; 41 C.J. 378; Leech v. Karthaus, 141 Ala. 509, 37 So. 696; Busbee v. Thomas, 175 Ala. 423, 57 So. 587. Complainant must show by allegations in his bill that he is entitled to the relief which he seeks. Birmingham T. S. Co. v. Marx, 230 Ala. 68, 159 So. 483; Rapier v. Gulf City Paper Co., 64 Ala. 330; McKinley v. Irvine, 13 Ala. 681, 693. The bill does not show that all other bonds had been paid when the demand was made; it was subject to the demurrer. Tarver v. Union Springs Cotton Mills, 218 Ala. 555, 119 So. 665. The deed of trust does not authorize the holders of a majority of the outstanding bonds secured to request a foreclosure, but provides that the request may be made by the holders of a majority in value of the bonds conveyed or secured. The bill fails to show that the bonds were signed by the respondent Lodge, or that execution of the deed of trust was authorized by the respondent. Tigrett v. Taylor, 180 Ala. 296, 60 So. 858; Bartee v. Matthews, 212 Ala. 667, 103 So. 874; Lavretta v. First Nat. Bank, 235 Ala. 104, 107, 178 So. 3; City of Mobile v. Mobile Elec. Co., 203 Ala. 574, 84 So. 816; Hope of Alabama Lodge v. Chambless, 212 Ala. 444, 103 So. 54; Barton v. Fitzpatrick, 187 Ala. 273, 65 So. 390; 34 Cyc. 1127; John Hancock Mut. Life Ins. Co. v. Schroder, 235 Ala. 655, 180 So. 327.
Monette, Taylor Jeffrey, of Birmingham, for appellee.
The respondent is properly sued in the name of Leeds Lodge No. 446, A. F. A. M., a fraternal organization, by being named as such. Shepherd v. Birmingham T. S. Co., 233 Ala. 320, 171 So. 906; Illinois Central R. Co. v. J. R. Kilgore Son, 12 Ala. App. 358, 67 So. 707; Mitchell v. Church of Christ, 219 Ala. 322, 122 So. 341; Sentell v. Friendship Baptist Church, 214 Ala. 584, 108 So. 517; Simpson v. James R. Crowe Post, 230 Ala. 487, 161 So. 705; Code 1923, §§ 5723, 5724. The bill, together with its exhibits, shows upon its face authority and a proper appointment of the successor trustee by a majority of the bondholders secured. Jacobs v. McClintock, 53 Tex. 72; Detroit Trust Co. v. Manilow, 272 Mich. 211, 261 N.W. 303; Farmers' Loan Trust Co. v. Hughes, 11 Hun, N.Y., 130; Jones on Mortgages, 6th Ed., § 1774. The bill, with its exhibits, shows on its face that at the time it was filed all bonds were in default, and written request for foreclosure was properly made to said trustee according to the terms of the trust deed. Florida Nat. Bank v. Jefferson Standard Life Ins. Co., 123 Fla. 525, 167 So. 378, 108 A.L.R. 77; Id., 125 Fla. 386, 169 So. 729, 108 A.L.R. 87; Hambrick v. Russell, 86 Ala. 199, 5 So. 298; Simpson v. James R. Crowe Post, supra; Federal Land Bank v. Mulkey, 228 Ala. 500, 153 So. 775; Code 1923, § 9010. Authority for issuance of the mortgage is shown by the bill and exhibits. Pallilla v. Galilee Baptist Church, 215 Ala. 667, 112 So. 134; Gewin v. Mt. Pilgrim Church, 166 Ala. 345, 51 So. 947, 139 Am.St.Rep. 41. The maker of a deed of trust who has received benefit of money derived from sale of bonds is estopped to deny execution of bonds evidencing indebtedness. Pylant v. Reeves, 53 Ala. 132, 25 Am.Rep. 605; Strong v. Waddell, 56 Ala. 471; Jones on Mortgages, 6th Ed., § 1483.
The respondent was sued and described by the name in which it executed the mortgage or deed of trust and the bill was not subject to the demurrer for failure of further description, that is, whether corporation, partnership or unincorporated association. Union Ins. Soc. of Canton, Limited, v. Sudduth, 212 Ala. 649, 103 So. 845.
The case of Shepherd v. Birmingham Trust Savings Co., 233 Ala. 320, 171 So. 906, is not in conflict as it was dealing with the necessity for describing the plaintiff and not the defendant and the opinion in the Sudduth Case, supra, expressly states [page 847]: "The rule is different where the corporation or partnership is plaintiff." There was no error in overruling the grounds of demurrer questioning the failure to further describe or designate the respondent.
It is next urged that the bill does not show a legal appointment of Whitmire to succeed Bell, the original trustee. It is manifest that the mortgage or trust deed contemplated that a majority of the outstanding bondholders should name a succeeding trustee when a vacancy occurred, that is whether Bell resigned or was removed by the trustees or by death.
The bill and exhibits also disclose that the foreclosure was requested by a majority of holders of the outstanding bonds. Moreover, the bill charges that all of the bonds were past due when the same was filed and the acceleration clause in the trust deed was of no moment and the trustee no doubt had the right to proceed in equity to foreclose whether requested to do so or not.
The bill and exhibits also disclose full authority for the issuance of the bonds and the making of the deed of trust to secure same.
There is no merit in the demurrer questioning the failure of the respondent Lodge to have signed the bonds as this suit is based on the deed of trust and not upon the bonds, and it plainly appears that the bonds were authorized by the Lodge for its benefit for funds to be procured and used in the erection of its lodge and the execution of the deed of trust was authorized and executed by respondent.
We think the insistence that the deed of trust required a majority of the bondholders as based upon the bonds secured instead of a majority of the holders of the outstanding bonds is too literal, and that the meaning is that the action of a majority is based on the live subsisting bonds outstanding, and that bonds that had not been sold or which were withdrawn or reclaimed did not operate as a claim or charge and were not to be included in ascertaining a majority.
The trial court did not err in overruling the demurrer to the bill, and the decree of the circuit court is affirmed.
Affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.