Opinion
5 Div. 228.
November 27, 1936. Rehearing Denied January 14, 1937.
Appeal from Circuit Court, Tallapoosa County; Jas. W. Strother, Judge.
J. Sanford Mullins and Richard H. Cocke, both of Alexander City, for appellants.
A deed absolute in form, if given merely to secure a debt, will be construed in equity to be a mortgage. Gerson v. Davis, 143 Ala. 381, 39 So. 198. Complainants jointly owning the land conveyed to secure a debt, each has a common interest in the right of redemption, and they are properly joined as parties complainant. Gerson v. Davis, supra. Where a bill is brought for the exercise of the equitable (as distinguished from statutory) right of redemption, no actual tender of amount due is necessary, it being sufficient merely to aver a present willingness and ability to pay. Allen v. Evans, 214 Ala. 106, 106 So. 601; Norville v. Seeberg, 205 Ala. 96, 87 So. 164. Tender is unnecessary where it would be a vain and idle ceremony, as where the creditor declines to accept the money tendered. Evans Furniture Co. v. Meyers, 17 Ala. App. 65, 81 So. 843. Formal or nominal parties, who have no interest in the controversy between the immediate litigants but who have an interest in the subject matter which may be conveniently settled in the suit, may be made parties or not at the option of complainant. 21 C.J. 303; Gulf Comp. Co. v. Jones Cotton Co., 157 Ala. 32, 47 So. 251.
Sam W. Oliver and Albert Hooton, both of Dadeville, for appellees.
Where a party has no interest to be served or protected and is entitled to no relief, he is not a proper party complainant to the bill, and his misjoinder in that capacity renders the bill demurrable. Rogers v. Torbut, 58 Ala. 523; Lehman, Durr Co. v. Greenhut, 88 Ala. 478, 7 So. 299; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084. The question of misjoinder of parties can be taken advantage of only by the parties misjoined. The question is raised by the separate demurrer of W. L. Hamlet and Reuben Ransaw. Worthington v. Miller, 134 Ala. 420, 32 So. 748; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67; Abrahams v. Abrahams, 219 Ala. 533, 122 So. 625. The uniting in one bill of several matters perfectly distinct and unconnected against one defendant, or the demands of several matters of a distinct and independent nature against several defendants, renders the bill multifarious and subject to demurrer. 21 C.J. 408, 413, 422, 424, §§ 427, 430, 444, 452; Ford v. Borders, 200 Ala. 70, 75 So. 398; Arnett v. Willoughby, 190 Ala. 530, 67 So. 426; Singer v. Singer, 165 Ala. 144, 51 So. 755, 29 L.R.A.(N.S.) 819, 138 Am.St.Rep. 19, 21 Ann.Cas. 1102; Edmonds v. Cogsdill, 182 Ala. 309, 62 So. 691; Swope v. Swope, 178 Ala. 172, 59 So. 661; Merritt v. Ala. Pyrites Co., 145 Ala. 252, 40 So. 1028; Felder v. Davis, 17 Ala. 418; Rucker v. Tenn. C., I. R. Co., 176 Ala. 456, 58 So. 465; Prickett v. Prickett, 147 Ala. 494, 42 So. 408. To give equity to a bill to have a deed declared a mortgage, it must be alleged that there was a debt due from complainant to respondent and that such deed was given and so intended as a security for such debt. Johnson v. Maness, 232 Ala. 411, 168 So. 452; Richardson v. Curlee, 229 Ala. 505, 158 So. 189; Pearsall v. Hyde, 189 Ala. 86, 66 So. 665; Shaw v. Lacy, 199 Ala. 450, 74 So. 933. The bill should allege an offer to pay the indebtedness and offer to redeem, and it should allege that the money is brought into court, or an excuse for not doing so. McMillan v. Beebe, 232 Ala. 350, 168 So. 146; Bone v. Lansden, 85 Ala. 562, 6 So. 611; Micou v. Ashurst, 55 Ala. 607; Davis v. Ashburn, 224 Ala. 572, 141 So. 226; Slaughter v. Webb, 205 Ala. 334, 87 So. 854.
The appellants, to state the substance of the bill's averments, allege that they are the owners of the lands described in the bill, consisting of 245 acres situated on the west side of the Tallapoosa river in Tallapoosa county, Ala.; that on the 16th day of December, 1931, they executed to the defendant T. J. Hamlet a deed absolute in form to said lands to secure the payment of an indebtedness of $439.25, then and there contracted to procure money to pay a past-due installment on a mortgage held by the Federal Land Bank of New Orleans and prevent a foreclosure of said mortgage; that it was the intention of the parties thereto that said deed should operate only as a security for the payment of said debt; that they have offered to repay the same and the said Hamlet has refused to accept payment and has declared that he will not accept the same; that complainants retained the possession of said lands, and the defendants W. L. Hamlet and Reuben Ransaw are "the present tenants upon said lands." The complainants offer to do equity. The bill seeks to have the deed declared a mortgage and to let complainants in to redeem therefrom.
The bill's averments are sufficient to give it equity as against T. J. Hamlet, and his demurrers thereto were not well taken. Harrison et al. v. Maury et al., 157 Ala. 227, 47 So. 724; Smith et al. v. Smith et al., 153 Ala. 504, 45 So. 168; Irwin et ux. v. Coleman et ux., 173 Ala. 175, 55 So. 492; Lewis et al. v. Davis, 198 Ala. 81, 73 So. 419.
It is well settled that persons jointly interested may maintain a bill to have a deed, absolute in form, declared a mortgage on proper averments and proof; hence there was not a misjoinder of parties complainant. Gerson et al. v. Davis et al., 143 Ala. 381, 39 So. 198.
It is not essential to the equity of such bill to allege previous tender or to bring the money admitted to be due into court. Hammett v. White, 128 Ala. 380, 29 So. 547.
The question of misjoinder of parties defendant can only be raised by the defendant improperly joined. Worthington et al. v. Miller, 134 Ala. 420, 32 So. 748.
The bill is not multifarious. Code 1923, § 6526.
The tenants of the complainants are not proper or necessary parties to the bill; they clearly have no interest in the controversy; and the bill does not seek to disturb their relation as tenants. Silverstein et al. v. First Nat. Bank of Birmingham, 231 Ala. 565, 165 So. 827.
The court therefore erred in sustaining the demurrer of T. J. Hamlet, and the decree in this respect is reversed and the cause is remanded. The demurrer of W. L. Hamlet and Reuben Ransaw was well sustained, and in this respect the decree is affirmed.
Affirmed in part, and in part reversed and remanded.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.