
    Hambrick v. Russell.
    
      Bill in Equity- for Foreclosure of Mortgage.
    
    1. Parties to bill. — The trustee in a mortgage, in whom tbe legal title is vested, is a necessary party to a bill for foreclosure, filed by an assignee of the mortgage debt; and the failure to make him a party will work a reversal of the decree, although the objection was not raised in the court below.
    2. Same. — In a suit for the foreclosure of a mortgage, the only proper parties are the mortgagor, the mortgagee, and those who have acquired any interest under them subsequent to the mortgage; and if a person is brought in as a defendant, who asserts a legal title prior to the date of the mortgage, whether under the mortgagor or a stranger, the court having no jurisdiction to adjudicate conflicting legal titles, the joinder is fatal to relief, without formal objection.
    Appeal from the Chancery Court of Madison.
    Heard before the Hon. S. K. McSpadden.
    The bill in this case was filed on the 8th March, 1886, by Martha T. Russell and Mary A. Walker, against Bradford Hambrick and wife, and Joseph M. Hambrick; and sought the foreclosure of a mortgage on a tract of land. The mortgage, a copy of which was made an exhibit to the bill, was dated. February 7th, 1881, and was given by said Bradford Hambrick (his wife also joining with him) to George M. Harris, “agent of Mrs. Missouri McCalley,” to secure the payment of a promissory note for $1,655, of even date with the mortgage, and payable twelve months after date to said Harris, with the addition of the same words. According to the allegations of the bill, the note was given for borrowed money, which belonged to Mrs. McCalley, and which was lent out'by said Harris as her agent. Mrs. McCalley died in August, 1881, having made and published her last will and testament, appointing Miss Martha T. Russell executrix, and making ber principal devisee and legatee; and letters of administration witb tbe will annexed were granted to ber. Harris, on settlement of his agency witb said administratrix, “assigned and transferred said debt and mortgage to ber, in discharge of bis liability for that amount.” On tbe 21st February, 1884, on final settlement of ber administration, “tbe same was, by tbe decree of tbe Probate Court, decreed and distributed to ber as sole legatee and devisee under said will; and she has since assigned said debt and mortgage to Mary A. Walker, ber co-complainant, as collateral security for a debt of larger amount.” Bradford Hambrick acquired title to tbe land under a deed of conveyance from Alfred Hambrick, bis brother, which was dated April 29th, 1877, which recited tbe payment of $5,000.00 as its consideration. Joseph M. Hambrick was a son of Alfred Ham-brick, and claimed, as tbe bill alleged, “some right, title, or interest in said land, under what purports to be a deed of conveyance executed to him by said Alfred Hambrick, of date September, 1865.” Tbe bill alleged that this instrument, if ever executed at all, was never recorded; that neither said Harris nor complainants ever bad any notice of it, and that Alfred Hambrick continued in possession of tbe land up to tbe 29th April, 1877, tbe date of bis conveyance to Bradford Hambrick. On these allegations, tbe bill prayed an account, a decree of foreclosure and sale, and general relief; but prayed no relief against Joseph M. Hambrick.
    An answer was filed by Bradford Hambrick and wife, admitting tbe execution of tbe mortgage, requiring proof of tbe amount due, but making no other defense. An answer was also filed by Josepb M. Hambrick, asserting tbe validity of bis own conveyance from Alfred Hambrick, assailing tbe validity of tbe conveyance by Alfred to Bradford Hambrick, and denying that tbe complainants were entitled to protection against bis unrecorded deed, as bona fide purchasers without notice.
    On filial bearing, on pleadings and proof, tbe chancellor held tbe complainants entitled to relief, and rendered a decree of foreclosure and sale in tbe usual form. Joseph 'M. Hambrick appeals from this decree, and here assigns it as error. Bradford Hambrick and wife do not join in tbe assignments of error.
    E. 0. Brickell, witb Humes, Walker, Sheeeey & Gordon, for appellant.
    Harris, as tbe bolder of tbe legal title to the land, was an indispensable party to tbe bill. Story’s Eq. PL, §§ 153, 209; 1 Dan’l. Cb. Pr. 198; 3 Brick Digest, 369, § 20; 2 Jones on Mortgages, § 1384; Prout v. PLoge, 57 Ala. 28; Denby v. Mellgreio, 58 Ala. 147. It was not necessary to raise this objection in tbe court below. McMaken v. McMaken, 18 Ala. 576; Woodward v. Wood, 19 Ala. 213; 3 Brick Digest, 373, § 98. Tbe court bad no jurisdiction to adjudicate tbe adverse claim of Josepb M. Hambrick — Randle v. Boyd, 73 Ala. 282; 4 Jones’ Eq. 174; 2 Jones on Mortgages, § 1440; Lockard v. Lockard, 16 Ala. 423; Freeman v. McBroom, 11 Ala. 943; Leiois v. Cocke, 23 Wall. 466; PLi'pp v. Babin, 19 How. 278.
    Cabaniss & Ward, contra,
    
    cited Tvbb v. Fort, 58 Ala. 283; 2 Brick Digest, 780, § 96:
   SOMERVILLE, J.

Tbe decree, wbicb is for tbe foreclosure of a mortgage, must be reversed for failure to make tbe mortgagee, Harris, a party to the foreclosure suit, be being tbe trustee in tbe mortgage, and as such the bolder of tbe legal title. In such cases, tbe trustee, in whom tbe legal title is vested, is an indispensable party, without whose presence tbe court will not proceed to a decree; and tbe objection is available at any time, and in any form.' — Comer v. Bray, 83 Ala. 217; Prout v. Hoge, 57 Ala. 28; Lawson v. Ala. Warehouse Co., 73 Ala. 290.

We might reverse tbe decree in this case, and have nothing further to add, as tbe testimony on another trial may be different from that in tbe present record. But, to prevent a second appeal, we proceed to consider some other points raised in tbe argument.

Tbe main point of controversy in tbe case is one as to tbe relative priority of titles acquired by tbe trustee (Harris) under tbe mortgage from Bradford Hambrick, on February 7th, 1881, and that acquired by Joseph M. Hambrick, by bis deed of September 9, 1865, from Alfred Hambrick, through whom both parties claim title.

It is contended for complainant, that Harris was a bona fide purchaser of tbe legal title, for value, and without notice, and should on this ground be protected. Tbe basis of this claim is, that tbe deed of Joseph Hambrick,’ whatever interest it created in him, was not recorded at tbe time tbe mortgage to Harris was executed, and that neither be, nor tbe mortgagor, Bradford Hambrick, bad any notice or knowledge of its existence. This question we need not decide. As we have said, the whole case is a controversy as to the priority of legal titles, at least according to the averments of the bill. — Lehman v. Shook, 69 Ala. 486; Code, 1886, §§ 1810, 1811. And a court of equity has no jurisdiction to try the relative merits of legal titles held by adverse litigants in such a suit. Any holder of such a title,, when brought in dispute, has a constitutional right to have its validity tried by a jury in an action of ejectment; and a court of law will furnish adequate remedy for testing the relative superiority of the claimants’ respective titles. In a bill to foreclose a mortgage, the only proper parties are the mortgagor and the mortgagee, and those who have acquired any interests from them subsequent to the mortgage. One who claims title from a stranger, or even from the mortgagor, anterior to the date of the mortgage, should not be brought in as a party defendant. This point was directly decided in Handle v. Boyd, 73 Ala. 282; and has been several times since re-affirmed. — McHan v. Ordway, 82 Ala. 463; Lyon v. Howell, 78 Ala. 351.

The objection is not one of multifariousness, but of jurisdiction as to the subject-matter, and may be raised at any time, or enforced by the court sua sponte, without formal suggestion.' — Lewis v. Cocke, 23 Wall. 466; Hipp v. Babin, 19 How. (U. S.) 278.

Reversed and remanded.  