Opinion
8 Div. 134.
June 18, 1942.
Appeal from Circuit Court, Marshall County; W. J. Haralson, Judge.
Suit to redeem land from mortgage by J. M. Hall against U. V. Gipson, Curtis Gipson, and W. R. Johnson, partners under the firm name of Gipson-Johnson Company, J. U. Carroll and Hooper Motor Company, wherein there was a petition for intervention by E. M. Hyatt. From a decree overruling a demurrer to the petition for intervention, respondents appeal.
Affirmed.
Street Bradford, of Guntersville, for appellants.
Intervener while interested in the lands is not interested in the cause of action set up in the original bill. He is an interloper, and his intervention should not be allowed. In re Printup, 87 Ala. 148, 6 So. 418; Ex parte Breedlove, 118 Ala. 172, 24 So. 363; 11 Ency.Pl. Pr. 504; 21 C.J. 345; Central Lbr. Co. v. Schilleci, 227 Ala. 29, 148 So. 614. Section 9485 of the Code 1923 is purely procedural and does not give a right of intervention where the party seeking to intervene otherwise has no right to do so. Fisher v. Bankers' Fire Marine Ins. Co., 229 Ala. 173, 155 So. 538. Appellee's claim of tax title is an independent outside claim, not originating from any parties to this suit. It is appropriate matter for an original suit, and is not affected by a redemption from these mortgages. Code 1923, § 9485; Code 1940, Tit. 7, § 247; Equity Rule 37, Code 1940 Tit. 7, p. 1082; 21 C.J. 342; Curtis v. Curtis, 180 Ala. 64, 60 So. 167; Renfro v. Goetter, 78 Ala. 311. The statute requires that the petition for intervention set forth the ground upon which it rests. The petition does not aver facts showing intervener's title or interest through tax sale. 21 C.J. 346; Code 1940, Tit. 7, § 247; Cortner v. Galyon, 223 Ala. 405, 137 So. 30.
Scruggs Creel, of Guntersville, for appellee.
Appellee seeks to intervene by virtue of the deed from Hall, as a mortgagee or transferee of the mortgage, and under a tax deed. He was entitled to intervene, and the demurrer was properly overruled. Dodd v. Deepwater Coal Iron Corp., 233 Ala. 392, 171 So. 732; Cortner v. Galyon, 223 Ala. 405, 137 So. 30; Snellings v. Builders' Supply Co., 228 Ala. 47, 152 So. 459; Pate v. Pate, 236 Ala. 320, 181 So. 750; Equity Rule 37 (Code 1940, Tit. 7, p. 1082); Code 1923, § 9485; Code 1940, Tit. 7, § 247.
This is an appeal from a decree overruling demurrer to a petition for intervention. The right to appeal is not here questioned, and was settled in Cortner v. Galyon, 223 Ala. 405, 137 So. 30.
Section 9485, Code of 1923, Code of 1940, Title 7, § 247, as applied to equity is cumulative and furnishes no new cause of action. Awbrey v. Estes, 216 Ala. 66, 112 So. 529; Greene v. Greene, 220 Ala. 395, 125 So. 640; Fisher v. Bankers' Fire Marine Ins. Co., 229 Ala. 173, 155 So. 538, but has a broader procedural scope than formerly existed in equity, Dodd v. Deepwater Coal Iron Corp., 233 Ala. 392, 171 So. 732.
There is no question here presented except the sufficiency of the petition for intervention on the demurrer addressed to it.
Appellant first insists that this is not a proper case for an intervention, because the intervener Hyatt has no interest in the suit.
The bill was filed by Hall to redeem land from three mortgages, one to Carroll executed in 1927; another to Gipson-Johnson Company in 1930, and another to Hooper Motor Company in 1931. Hyatt, intervener, claims as assignee of a mortgage by Hall to one Swords, executed in 1929, assigned since the commencement of the suit; and, also, that since that time he had acquired all the right, title and interest of Hall in the land by quitclaim deed, and also a tax title under a sale made to the State which he has acquired since the commencement of the suit.
"The rule in equity is that when a sole plaintiff has assigned his whole interest in the suit subsequent to its institution, plaintiff can no longer prosecute for want of interest, but his assignees could proceed by an original bill in the nature of a supplemental bill. It is to all intents and purposes the commencement of a new suit, which draws to itself advantage of the proceedings on the former bill, and has the benefit of it. 2 Daniell Chan.Prac. (6th Ed.) 1518; Sims Chan.Prac. § 617; Bowie v. Minter, 2 Ala. 406, 412; 21 Corpus Juris 541, 542, note 81; 10 R.C.L. 503. But under our chancery practice, the same purpose can be accomplished by an amendment. Patton v. Darden, 227 Ala. 129, 148 So. 806; 21 Corpus Juris 340, § 336.
"And sometimes an intervention is available. Section 9485, Code [Code 1940, Tit. 7, § 247]; 21 Corpus Juris 341, § 338, page 346, § 349; 47 Corpus Juris 104, 105, § 200, note 66." Holder v. Taylor, 233 Ala. 477 (11), 172 So. 761, 763; Branyon v. Kirk, 238 Ala. 321, 191 So. 345.
It is immaterial whether the purchaser is brought in by an amendment filed by the original complainant, or by a bill on his behalf in the nature of a supplemental bill, or by an intervention under equity pleading as enlarged by the statute.
The equity of redemption is subject to sale and conveyance so that the grantee may exercise it to the same extent as could the mortgagor before its conveyance. Rapier v. Gulf City Paper Co., 64 Ala. 330; Butts v. Broughton, 72 Ala. 294; Rothschild v. Bay City Lumber Co., 139 Ala. 571, 36 So. 785.
The right to intervene by virtue of his acquisition of the equity of redemption pending this suit, as alleged, from the sole complainant being shown by the petition for intervention, the tax title is not necessary to confer that right. The petition may not be sufficient in its averments of the tax sale to show a right to intervene, but as a whole it is not subject to demurrer on that account.
The petition sets forth good and sufficient ground for intervention by alleging that petitioner has acquired since the commencement of the suit all the right of the complainant sought by his bill, which is to redeem the land from three mortgages.
Let the decree be affirmed.
Affirmed.
All the Justices concur. except KNIGHT, J., not sitting.