
    Langley et al. v. Andrews.
    
      Bill in Fquity to Foreclose a Mortgage.
    
    1. Equity pleading; no reversible error to fail to pass upon a demurrer. — Where a hill in equity is not subject to a demurrer interposed thereto, the fact that the chancellor omitted to rule upon said demurrer, notwithstanding it was embraced in the note of submission, constitutes no error prejudicial to the respondent.
    2. Equity pleading; when answer of one of defendants can be considered and read as evidence. — As a general rule, the answer of one defendant is not good against another, hut when the right of a complainant as against one defendant is only prevented from being complete by some question between the complainant and a second defendant, the answer of the -second defendant may be considered and read in evidence.
    3. Bill to foreclose mortgage; when answer of the assignor of the mortgage will be considered and read in evidence against the mortgage. — Where the assignee of a mortgage files a hill against both the mortgagor and assignor to foreclose said - mortgage, and execution of the mortgage is proved, and the assignor by answer admits the assignment, the complainant will he entitled to a decree, notwithstanding the mortgagor may deny all knowledge of the assignment.
    
      4. Execution of written instrument; what constitutes duress rendering instrument voidable. — It Is not the threat of a criminal prosecution in any case that constitutes duress which is deemed sufficient to avoid contracts, or to render invalid the execution of a written instrument, but the threat of criminal prosecution must be of such a nature and made under such circumstances as to constitute a reasonably adequate cause to control the will of the threatened person, and must have that effect, and the acts sought to be voided must be performed by said person while in such condition.
    5. Same; duress; ratification. — A contract made under duress is only voidable and, therefore, the party upon whom duress has been imposed subsequently recognizes the validity of the contract involved, either by making payments thereon or otherwise, he will be held to have elected to, waive the duress and ratify the contract.
    G. Mortgage; stipulation for payment of attorney's fee. — The provision contained in a mortgage that the proceeds of the sale from the mortgage should be devoted, first, to the payment of the expenses of said sale, “including a reasonable attorney’s fee for collecting said sum, whether by foreclosure of ' under order of sale, or by proceedings in court or otherwise,” is sufficient to authorize the allowance of an attorney’s fee for filing a bill in equity to foreclose said mortgage.
    Appeal from the Chancery Court of Tallapoosa.
    Heard before the Hon'. Richard B. Kelley.
    The appeal in this case is prosecuted from a final decree granting the relief prayed for by the complainant. The facts of the case necessary to an. understanding of the decision on the pi'esent appeal are sufficiently stated in the opinion.
    James W. Strother, for appellant.
    An attorney’s fee cannot be allowed for a. foreclosure in equity unless there is shown a necessity for resorting to that method. — Be-dell v. Mortgage, Co., 91 Ala. 325; Am. So. Mortgage (Jo. r. McCall, 96 Ala. 200. The defnse of duress being fully made out, respondent Langley was entitled to a decree dismissing complainant’s bill; a contract, the execution of which was induced by threats of criminal prosecution and imprisonment, is void; and it makes no difference whether the threats were of lawful or of unlawful imprisonment, this is equally true.- — Hartford Fire Ins. Go. v. 
      
      Kirkpatrick, ¡hum é Co., Ill Ala. 456, and authorities therein cited. — Mo-me v. Wooclworlh, 155 Mass. 251, which is cited with approval and quoted from extensively in the above case is a very strong authority in support of the contention here made and fully supports the insistence of th.e appellant on this point. — See also Broten i>. Pierce, 7 Wall. (U. S.) 215; Kilhnwn v. Ryan, 168 Past. 484; Beckman r. Pirarte, 64 Wis. 48; Phelps v. Zuschlatj, 34' Tex. 371.
    E. M. Oliver, contra.
    
    It is true that, as a rule, the answer of a defendant cannot be read as evidence against a co-defendant, but there art exceptions. In cases, however, where the right of .the plaintiff as against one defendant, is only, prevented from being complete by some question between the plaintiff and a second defendant, the plaintiff is permitted to read the answer of such second defendant for the purpose of completing liis claim against the first. — 1 Dan. Oh. Pr., 4 Ed. 842, Chap. 22, sec. 1; Mchare v. Riddle, 19 Ala. 180¡'Green v. Casey, 70 Ala. 417. The evidence is not sufficient to avoid the mortgage on the ground of duress. — Wildsmith v. Tract/, 80 Ala. 258.
   DENSON, J.

On the 16(h day of June, 1904, W. T. Langley executed to one A. II. Slaughter, his note under-seal in the sum of twenty-five hundred and seventy-nine and 68-100 dollars, due October 15th, 1894, and a mortgage on certain real estate to secure said note.

On the 14th day of September, 1904, the said note and mortgage were assigned by the mortgagee to S. M. Inman & Company. On the 9th day of September, 1895, S. M. Inman & Company, assigned the note and mortgage to J. E. Andrews, who as such assignee, on the 1st day of May, 1897, filed the bill in this case for the purpose of having said mortgage foreclosed. During the progress of the litigation, J.- E. Andrews died, and the cause was revived in the name of Walter Andrews as the administrator of his estate.

W. T.' Langley and A. II. Slaughter, the mortgagor and mortgagee, with Sandy Rowe, James Carpenter, Leonard Rainey, T. A. Hicks and W. T. Slaughter were made parties respondent to tlie bill, as originally filed, it being alleged in the bill that the five last named persons were in possession of the lands involved in the litigation; that their interest was unknown but was subordinate to the mortgage.

On a former appeal, it was held, that the assignment made of the mortgage to J. E. Andrews by S. M. Inman & Company, was not in requisite form to convey the legal title and, therefore, that they were necessary parties to the bill. — Langley v. Andrews, 132 Ala. 147. The bill was thereupon amended by making S. M. Inman & Company and the individuals composing the firm parties.

This amendment avers that S. M. Inman & Company, is a firm having its principal place of business in Atlanta, in the state of Georgia; that said firm is composed of S. M. Inman and W. II. Inman.

The respondent, Inmans and A. H. Slaughter answered the bill as last amended; in their answers they admitted all of the allegations of the bill and disclaimed any interest in the subject matter of the suit.

Decrees pro-confesso weie entered against all.of the ether respondents except W. T. Langley, and he alone defends ag'ainst the bill.

The deiense machí by Langley’s answer as to the merits of the case are, that the note for the security of which the mortgage was given is wholly without consideration; that he was not indebted to the mortgagee in any sum; that' the note and mortgage were executed by him under duress, and payment of the mortgage indebtedness.

In the answer of Langley is incorporated a demurrer to the bill as last amended, upon the ground that the amendment making R. M. Inman & Company -parties, fails to show that R. M. Inman and W. II. Inman are the only members of the firm of R. M. Inman & Company, and that there is no prayer for relief against said parties.

The chancellor on final hearing rendered a final decree in which he ascertained the amount due on the note and mortgage and ordered a foreclosure of the mortgage.

In the final decree the chancellor omitted to rule upon the demurrer to the bill, notwithstanding it was embraced in the respondent Langley’s note of submission. This omission in the decree is presented for review by the first and second assignments of error.

Upon an examination of the bill as last amended, Ave conclude that the averments therein fully answer the demurrer, and Avliile it may have been a more orderly course of procedure for the chancellor to have made a specific ruling upon the demurrer, yet, the demurrer being without merit, there ivas no error prejudicial to respondent in the omission of the chancellor to pass upon the demurrer directly.

It is next contended by the respondent, appellant here, that the allegations of the amended bill Avere not sustained by proof, and that Avithout such proof the final decree in favor of the complainant Avas erroneous. This contention, as sIioavu by brief of counsel relates only to the aArerments as to tí. M. Inman & Company’s interest. We have shoAvn -above the-amendment relating to this matter.

The record sIioavs that tí. M. Inman and W. H. Inman filed ansAvers to the bill as amended in AAdiich they admitted all the allegations of the bill, and especially do they aArer in their ansAvers that they have no interest AA-'hatever in the lands conveyed by the mortgage to complainant.

“It is a general rule, Avith but ícav exceptions, that the ansAver of one defendant is not good against another. Yet AA’hen the right of a complainant as against one defendant is only prevented from being complete, by some question between the plaintiff and the second defendant, the answer of the second defendant may be read as evidence. Thus, if a mortgage is assigned, and the assignee files a bill against both the mortgagor and assignor, and the mortgage is proved and the assignor admits the assign-, ment, the complainant Avill be entitled to a decree, notAvithstanding the mortgagor may deny all knowledge of the assignment. The reason of this is, that the mortga gor has no interest in the assignment, and as the ansAver of the assignor estops him, the equity of the assignee is complete.”- — McLane & Plowman v. Riddle & Burt, 19 Ala. 180; Green v. Casey, 70 Ala. 417.

In the case of Moore v. Hubbard, 4 Ala. 187, AAdiich was a suit for the settlement (if partnership accounts, partners who had sold their interest, were defendants to Ihe bill,, and they admitted tin* transfer by their answer. The court held that the answer could not be read .as evidence of the transfer against the other defendants. The court commenting on this ruling in the case of McLane & Plowman v. Riddle & Burt, supra, said: “The error of this opinion consists in this, that the answer of the partners who had transferred their interest would bind theni, and would always be evidence as between them and the complainant of the transfer, and they never could afterwards successfully assert their interest.” So Ave conclude there is no merit in this contention of the appellant.

The sixth assignment of error is not insisted upon in the brief axid argument of counsel and we" Avill pass it.

This brings us to the consideration of the defense that the note and mortgage Avere given under duress: With respect to this defense, the respondent in the second paragraph of his ansAver makes the following avermynt; “Further answering said bill the respondent says, that he denies that on the. 16th day of June, 1894, he Avas indebted to A. TT. Slaughter. He admits that on said da)' he executed to said Slaughter a note and mortgage as described in said paragraph two of the bill, but he. avers and alleges that said note and mortgage Avere obtained from him xuxder duress by threats of criminal prosecution made to this respondent by one J. S. Akers, avIio Avas the agexxt of A. II. Slaughter and S. M. Inman & Company in said transaction, axul he fxxrther avers that said note and mortgage to the said A. T-T. Slaughter Avere Avlxolly and entirely AA'ithout consideration because, this respondent Avas not indebted to the said Slaughter in any manner, and he did ■not roceiA'e from the said Slaxxghter at the time of the execution of said note and mortgage, any money or anything else as the consideration for said note axxd mortgage; bxxt this respondent avers and alleges that he Avas induced to sign said note and mortgage by said threats of proseexxtion.”

Certainly these averments as to duress are of a very general nature axxd are mere conclusioxxs of the pleader. The character of the threats, and of the crixninal prosecxLtioxx is nowhere disclosed in the pleadiixg, and xve must find it, if it existed, in the evidence adduced upon the subject.

“The general rule of law is well established, on reasons of justice and sound policy, that contracts, in order to be valid -and binding, must be the result of the free assent of the parties. Therefore, duress, either of actual imprisonment or por minas, constitutes a good defense to an action on a contract in behalf of those from whom contracts have been thus extorted. Duress by menaces, which is deemed sufficient to avoid contracts, includes a threat of imprisonment, including a reasonable fear of loss of liberty.”- — Robinson v. Gould, 11 Cush. 55. “It is not the threat of criminal prosecution in any case that constitutes duress, but the condition of mind produced thereby. The threat must be of such a nature, and made under such circumstances, as to constitute a reasonably adequate cause to control the Avill of the threatened person, and must have that effect, and the act sought to be avoided must be performed by the person Avhile in such condition.” — Wolff v. Bluhm, 95 Wis. 257; S. C. 60 Am. St. Rep. 115; Flanigan v. City of Minneapolis, 36 Minn. 406.

In the case of Hartford Ins. Co. v. Kirkpatrick, 111 Ala. on page 467, discussing this subject, it was said by this court; “It cannot, of course, be said that the fact, that a payment or contract is made- .or induced from a mere fear of imprisonment, if it should not be made, affords any reason for avoiding the payment or contract on -the ground of duress. But if the fact that the person making the same is liable to arrest and imprisonment is used as a threat to overcome his Avill and compel a settlement Avhich he Avould not have made voluntarily, it Avill amount to duress. The question in every case is Avhether his liability to imprisonment was used against him by Avay of threat to force a settlement. If so, the use was improper and unlawful, and if the threats Avere such as wo-uld naturally overcome the mind and will of an ordinary man, and if they did overcome his will, he may aAmid the settlement.” — Barrett v. Mahnken, 6 Wyo. 541; S. C. Am. St. Rep. 953; Rendleman v. Rendleman, 156 Ill. 568; Higgins v. Brown, 78 Me. 473; Shattuck v. Watson, 7 L. R. A. 551 and notes thereto.

The question of duress per min as, vol non, is one of fact in the particular case. — 10' Am. & Eng. Ency. Law, (2nd ed.), p. 326. Conceding that Akers was the agent of the mortgagee Slaughter, and that the Slaughter mortgage was the one he had in mind, was speaking about and trying to procure from respondent at the time he made the threat attributed to him, yet, when the defense of duress is tested by the above principles of law, we cannot say that the chancellor’s conclusion upon the evidence adduced in support of the defense is erroneous.

“In general, a contract made under duress is only voidable, and not void; hence the one on whom duress has been imposed may either repudiate or affirm it.”- — 10 Am. & Eng. Ency. Law, (2nd ed.), page 334, and citation of authorities under note 1. It has also been held that if the party upon whom duress has been imposed recognizes the validity of the contract involved, either by making payments thereon or otherwise, he will be held to have elected to waive the duress and ratify the contract. — 10 Am. & Eng. Ency. Law, (2nd ed.), page 337 and citation in note 1.

The record in this case shows that the complainant, J. E. Andrews was examined as a witness, and inter alia, he testified that W. T. Langley (the respondent), first informed him that 8. M. Inman & Company held the note and mortgage against him and requested him to buy them.

As suggested in the brief of counsel ’for appellee, the first note of submission shows that this testimony of J. E. Andrews was taken prior to June 20th, 1898, and was published and open to the inspection of the respondent at that time, and by an order made March 1st, 1899, the chancellor set aside the submission and gave each' party ihe right to take additional testimony and to re-examine any witness theretofore examined The cause was not again submitted until December 7th, 1899, and the respondent has never denied nor sought to contradict this testimony of J. E. Andrews. We feel that we are fully warranted in presuming that the evidence is true and was so regarded by the respondent, or he would have contradicted it. If then, Andrews bought the note and mortgage at Langley’s request, it would seem,, that upon the plainest principles of equity jurisprudence, Langley, by his own conduct, effectually estopped himself from setting up the defense against them which he has attempted to set up in this suit. — Wilkinson v. Searcy, 74 Ala. 243; Auerbach v. Pritchett, 58 Ala. 451; 3 Mayfield’s Digest, p. 422, § 264, p. 424 § 311 p. 425 § 346.

There is abundant evidence in the record tending to show consideration for the note and mortgage and also in refutation of the defense of payment.

It is insisted by the appellant that the chancellor erred in the amount decreed to be due to the complainant. We have computed the interest on the note according to its terms, from the date of its maturity to the date of the decree of foreclosure, and allowing the complainant ten per cent, attorney’s fee on the amount of principle and interest due on the note, we have found no error prejudicial to the appellant.

But, it is insisted that under the terms of the mortgage the complainant is not entitled to an allowance for attorney’s fees. This insistence is rested upon the proposition, that such fee cannot be allowed for a foreclosure in equity unless there is shown a necessity for resorting to that method. The cases of Bedell v. Mortgage Co., 91 Ala. 325; American Freehold Land Mortgage Company of London, Limited v. McCall, 96 Ala. 200, are cited in support of appellant’s insistence. In each of the cases cited the mortgage contained a power of sale in Avhich Avas stipulated the payment of attorney’s fees, “if it shall become necessary to employ an attorney to foreclose this mortgage, or collect any part of the debt therein secured.” It Avax ruled, that- a Solicitor’s fee for filing a bill to foreclose could not he alloAved unless a necessity was shown for resorting to that remedy; the correctness of the ruling cannot be denied.

The -mortgage involved in this suit, however, does not contain the provision found in the mortgages involved in the cases above cited, hut the provision with reference to allowance of attorney’s fees as follows, namely,' “the proceeds of sale to be ’’/•voted, 1 A, to the payment of expenses of said sale, adverUsing, etc., including a reasonable attorney’s fee for collecting said sum, whether by foreclosure or under poAver of sale, or by proceedings in court or otherwise.” Thus the case is withdrawn from the influence of the cases relied upon by appellant, and is controlled by the case of Stephenson v. Allison, 123 Ala. 439.

The note stipulates for ten per centum attorney’s fee, and under the influence of the case last above cited, the chancellor in ascertaining the amount of the mortgage indebtedness was authorized to allow the attorney’s fee of ten per centum.

We concur in the conclusions reached by the chancellor, and having discovered no error in the record the decree of the chancery court must be affirmed.

Affirmed.

McClellan, C. J., Haralson and Denson, J.J., concurring.  