
    Wood v. Wood.
    
      Bill in Equity to' enjoin Foreclosure of Mortgage and to redeem.'
    
    1. Res adjudioata; when shown to exist.- — A judgment or decree of a court of competent jurisdiction is conclusive, and becomes res adjudioata, as to a subsequent suit, when it is ascertained that the matters of the two suits are the same and the issues in the former suit were broad enough to have comprehended all that was involved in the issues in the second suit; the inquiry being not what the parties actually litigated, but what they might and ought to have litigated in the former suit.
    2. Same; same; hill to enjoin foreclosure of mortgage. — On a bill filed by one of several mortgagors to enjoin the threatened foreclosure of a mortgage, upon the ground that the mortgage had been fully paid and that it had been ascertained and determined by a court of competent jurisdiction that there was nothing due on said mortgage, it was shown that> prior to the filing of said bill the defendant therein filed a bill in equity against tlie complainant in the pending suit and others, alleging in said bill that there existed a co-partnership between him and said defendants to his bill and that upon the dissolution of said partnership the said defendants executed a mortgage to him to secure a stipulated in- . debtedness. The prayer of said former bill was for the appointment of a receiver and an accounting between the parties, and that said mortgage be foreclosed. In the answer to> said former bill, the defendants therein denied its material allegations and especially denied that there ever existed a partnership between them and the complainant, or that there was an indebtedness due upon said mortgage. In his decree upon the final submission of the cause on the pleadings and proof, the chancellor was of the opinion that no partnership had existed between the several defendants and the complainant as alleged in the bill, and further that the complainant was not entitled to the relief prayed for, and thereupon decreed that relief was denied and that the complainant’s bill be dismissed out of court. Held'. That inasmuch as the indebtedness of the mortgage was one of the issues involved in the former suit, the decree in said former suit denying the relief prayed for was res adjudicada, as to the pending suit and was conclusive to show that there was no indebtedness due upon said mortgage, and that, therefore, the complainant in a subsequent suit was entitled to have the attempted foreclosure of such mortgage enjoined. (Tyson, J., dissenting.)
    
    Appeal from the Chancery Court of Pike.
    Heax’d before the Hon. A. H. Alston.
    'The bill in this case11 was filed by the appellee, M. A. Wood, against the appellant, Willis C.- Wood; and sought to have the defendant enjoined from the attempted foreclosure of a mortgage executed by the complainant, and others to the defendant, and to1 have it declared that the question of indebtedness vel non upon said mortgage had been adjudged by a court of competent jurisdiction ascertaining that there was nothing due thereon, and that said mortgage be delivered up and cancelled. It was also further prayed in the bill that if the complainant was mistaken as to the martgage debt having been paid, that ho be allowed to redeem from 'under said mortgage. The ground upon which it was sought to enjoin, the foreclosure of saidl mortgage and have said mortgage delivered up' and cancelled Avas, that in a pre-Adous. suit in equity instituted by the defendant in the present case against the present complainant and others, it Avas adjudged and determined that there Avas nothing due upon said mortgage and that it Avas an existing and enforceable security. The proceedings in the former suit are made an exhibit to the bill. The decree which .Avas rendered in the former suit of W. O. Wood against the present complainant and others Avas as folloAvs: “In consideration of the legal evidence) the court is of opinion that M. A. Wood, P. S. Wood and B. W. Wood named in the bill were not partners of the firm of J. P. Wood & 'Co. and not liable to account to complainant as prayed in this suit. The court is further of opinion that the complainant is not entitled to the relief for which he prays. It is therefore ordered, adjudged and decreed that relief be denied,’ and that the complainant’s bill be dismissed out of this Court.”
    The other facts of the case necessary to an understanding of the decision of the present appeal, are sufficiently stated in, the opinion.
    On the final submission of the cause on the pleadings and proof the chancellor decreed that the question of indebtedness by tire complainant to- the respondent was res adjudicate, and that it had been judicially ascertained in the former suit that there was nothing due upon the mortgage involved in the present suit, and further that the complainant in the present suit Avas entitled to the relief sought in the tell. It Avas farther ordered that said mortgage be delivered up and cancelled, and that the injunction previously issued restraining the foreclosure of said mortgage be made pereptual. From this decree the respondent appeals, and assigns the rendition thereof as error.
    Gunter & Gtjnter, for appellants.
    In the former suit, the decree in Avhieh is set up in this bill as res adjudicada■, there aattis no question adjudicated which was necessarily fatal toi the foreclosure of the mortgage. It is settled beyond controversy by many decisions of this court, as well as throughout the United States, that the plea of res judicata must be certain to every intent. It must appear that the matter sought to be litigated in the second suit was in fact, or necessarily, involved in the decision of the first suit.- — Gilbreath v. Jones, 66-Ala. 129; Russell v. Place, 94 U. S. 606; Oarroll v. Oarroll, 16 How. 275; 5 Notes U. S. Rep. 370; Steam G. Oo. v. Méyrose, 27 Fed. Rep. 213; Strang- v. Moog, 72 Ala. 460 ; Bigelow on Estoppel, (5th ed.) 51, 61; (Greenwood v. Warren, 120 Ala. 78; 1 Pacific Reporter 626.
    Foster, Sameord & Carroll and J. M. Chilton, iontra.
    On a bill filed to settle a partnership and to foreclose a mortgage where issues, of facts are joined by an answer and a submission is had on pleadings and proof for final1 decree, the decree dismissing the bill on such submission is final and conclusive that neither right claimed in the bill is? enforceable. The following principle of law so well supported by authorities is conclusive of the question involved! in this suit:
    “When there is no question as to' the jurisdiction of the court, or as to the identity of the parties, the inquiry, whether the subject matter' of the controversy has been drawn in question, and is concluded by former adjudication, is determined, when it is ascertained that the matters of the two suits are tire same, and the issues in the former suit are broad enough to have comprehended all that is involved! in the issues in the second suit. The inquiry is not what the parties litigated, but what they might and ought to' have litigated in the former suit.” — Ta/nkersley v. Pettis, 71 Ala. 186;‘ Glasser v. Meyrovits, 119 Ala. 156-157; Waring v. Lewis, 55 Ala. 615, Stratoss v. Mertief, 64 Ala. 294; Moone v. Orowder, 72 Ala. 79; Strang v: Moog, 72 Ala. 461; Broten v. Tilman, 25 Southern Rep. 836.
    “A judgment, as between the parties or privies, as a plea or bar, or ais a matter1 of evidence, is conclusive, not only of the questions actually litigated, but of all questions within the issues which could have been properly. litigated and determined.” — Strauss v. Mertief, 
      64 Ala,. 299; Trustees eta. v. Eellar, 1 Ala. 406; Glumberlum v. Gciillwrd} 26 Ala. 504; Wittich v. Traim, 25 Ala. 317.
   HABALSON, J.

The bill was filed1 by M. A. Wood against W. O. Wood, toi redeem certain described lands from a mortgage executed -by himself, J. P. Wood and F. S. Wood, on the 7th January, 1885, to said W. O. Wood.

The bill alleges that complainant is in possession of and owns a portion of the land embraced in the mortgage, not having parted with any right or title held by him since the execution of ¡said1 mortgage, and from] aught appearing, he and said J. P. and F. S. Wood, owned jointly the other lands therein described. The lands under mortgage are described in the bill, and the portion owned entirely by the complainant is also described.

It alleged that said W. G. Wood had advertised the lands for sale and was proceeding to sell the same under the power in the mortgage. Said M. A. Wood, one of the mortgagors, filed this bill, as stated, to redeem, and to enjoin said sale by the mortgagee, W.C. Wood, alleging that the mortgage debt had been fully paid, and there was nothing dlue on the mortgage; alleging, also, that it had been adjudicated between them by a competent court having jurisdiction of the parties and subject matter, that there was nothing due on the mortgage; and in the alterna,tive, that if mistaken in this, and it should be ascertained by tires court that there was anything due on said mortgage, complainant submitted himself to the judgment and decree of the court with' respect, thereto; and offered to pay such amount as might be found due.

It will be seen., then, that the main question in the case, as conceded by counsel on both sides is, whether or not the question of indebtedness of the complainant,, M. A. Wood, to the defendant, W. O. Wood, is res adjudicata; and, incidentally, if in a bill of this character, as contended by respondent,, the other mortgagors, J. P. and F. S. Wood are not necessary parties. In what respect are they interested? In the part of tin- land mortgaged, claimed to be owned entirely by complainant, M. A. Wood, they have no' interest, since it is alleged and proved, they have conveyed their- interests therein to him. But, there are other laud's in the mortgage besides these, in. which, as J. P. and F. S. Wood joined in the mortgage, it would seem they were interested with complainant, and would, themselves, have a right to redeem. It is true, the complainant, if anything is fofiind to be due and owing on the mortgage debt, could not redeem a, part of the mortgaged premises, but would! have to redeem the whole, by paying the entire mortgage debt. — 2 Pom. Eq. Jure. §§ 1211, 1212, 1221; Lehman v. Moore, 93 Ala. 186; Jones v. Matkin, 118 Ala. 348; McQueen v. Whetstone, 127 Ala. 417. The rule as laid down by Daniel and Story, as to the proper parties is, — to quote the language of Daniel, — “As a person entitled to a part only of the mortgage money cannot foreclose the mortgage without, bringing the other parties interested in the; mortgage money before the court, so- neither can a mortgagor redeem the mortgaged estate without making all those who have an equal right to redeem with himself parties, to- the suit. * * *

The. mortgagee has a right to' insist that the whole of the mortgaged estate shall be redeemed together; and for this purpose, that all the persons interested in .the several estates or miortgages should be made parties to a bill seeking an account andl redemption-.” — 1 Dan. Ch. Pr. 212; Btorv Eq. PI. §§ 185-188. Whether there was reversible error in not having made all his- co-mortgagors parties, -either as complainants or defendants,— conceding that they were necessary parties, in the matter of the alternate redemption as prayed for, — will depend, however, on the decision of the other and main question in the casé, as¡ to whether or not the indebtedness by complainant and his> co-mortgagors, J. P. and F. S. Wood, had been, theretofore, adjudicated between them by ai competent court having jurisdiction of them and of the subject-matter of said mortgage indebtedness. If the question of indebtedness on the mortgage had been so adjudicated, and it had been ascertained that the mortgage hadl been fully paid, there could, of course, be no room for redemption from it, and this would apply to each of the mortgagors, and destroy the mortgage as to each and all of them, which fact could afterwards be set up by either, for himself, in any proceeding by the mortgagee to enforce the mortgage, or by complainant to cancel it as a cloud on. his title, without reference to the other mortgagors, or mailing them parties;.

Let us then consider the question of res adjicclicata. It grows, out of a case, as shown, filed in the chancery court of Pilca county, on the 2d day of February, 1887, by the defendant in this case, W. O. Wood, against complainant, M. A. Wood, and said J. P. and F. S. Wood, and B. W Wood, the latter being brothers, and all' except B. W. Wood, joint mortgagors in: said mortgage. The facts of that case, as it appeared in this court on appeal, and as recited in the opinion of the court in 119 Ala. 181, are referred to by both sides in this case as being a correct statement. For convenience, we adopt that statement, where it is said that said W. O. Wood claimed “that on August 1, 1881, a copartnership was formed between, himself and- J. P. Wood, F. 'S. Wood and B. W. Wood, under the name of J. P. Wood & Co., by the terms of which, complainant was to have one-half interest therein, and defendants the other half, which partnership was dissolved on August 1, 1881, and praying for the appointment of a receiver and an accounting between the partners, that a lien be declared in favor of complainant for his, reimbursement on certain designated property into which, it was alleged, money and property of tire firm, fraudulently misappropriated by defendants, had been converted, and that a mortgage which hadl been, given to complainant by J. P. Wood, M. A. Wood and F. S. Wood, in eonsidera.tion of his undertaking and promising to pay all the indebtedness of the firm to the extent of $17,000, be foreclosed. The answer of the defendants denied the material allegations of the bill, and especially that there ever was such a partnership as that alleged in the bill, each of the defendants! except J. P. Wood, denying that ha was, or ever had been a member of said partnership, and averring that said partnership was composed of complainant [W. C. Wood] and J. P. Wood only.” It may be added, 'that the matter of the indebtedness of said mortgagors in said mortgage, was clearly, fully and specifically claimed! by said W. C. Wood in his said bill and as clearly, fully and specifically denied by the mortgagors, the defendants therein, and all indebtedness by them tiheraumder was distinctly denied. The question, then,’of indebtedness or not, by them to eomplainant, W. C. Wood, was clearly and distinctly made in that case, and wais an issue therein. Upon a reference to the register, on the issues involved, he found and reported that the partnership was begun on August 1, 1882, and that the members of the firm were complainant, W. C. Wood, J. P. Wood, F. S. Wood, B. W. Wood, and M. A. Wood,' — 'the complainant in this suit; he stated an account between tire partners, showing- a balance due complainant, W. C. Wood, and found a balance, of $2, 791.79 due on the mortgage. “On August 6, 1895, the cause was submitted for decree on the exceptions of both parties to the register’s report, and on the 3d of February, 189.6, in term time, the chancellor, upon a consideration of all the evidence, decreed that M. A. Wood1 [this complainant], F. S. Wood and B. W. Wood were not members of said firm of J. P. Wood & Co., sustained defendant’s exceptions, overruled those of complainant [W. C. Wood], and overruled the report m toto." On the 5th of February, 1896, andi in term time, the cause as it then stood was submitted on pleadings and proofs, and a decree was rendered the same day, dismissing the bill. The court ini this decree held, that the complainant was not entitled to the relief for which he prayed, and that relief should be denied. That decree, which was final, was appealed from by the complainant, and was here affirmed. — Wood v. Wood, supra. Whether there was anything due on the mortgage was a disputed question in the case. The indebtedness claimed by the mortgagee was denied by the mortgagors. “The issue [of indebtedness v&l now] thus presented, involved one of the equities upon which complainant’s right to- relief depended.”

Iti satisfactorily appears from said decree, when construed in connection with the pleadings, that it Avas determined not only that M. A., F. S. and B. W. Wood. Avere not partners Avit-h -complainant under the firm name of J. P. Wood] & 'Co-., but, also; that sa-icl mortgage Avas fully paid and discharged. One J. M. Hanri-l had been examined as a Avitness by defendants in that case, and it appears that on the submission o-f the cause his deposition Avas before the chancellor, but was not in the transcript on- appeal to this court. The court said: “We ha,Are no means- of knowing the nature of his testimony, and hence must presume, -as insisted by counsel, -that is ayos sufficient in character and weight, considered in connection AA'ith all the other evidence, to justify the conclusion of the chancellor that tire firm of J. P. Wood & Oo., was. composed of complainant and J. P. Wood only; that there Avas nothing due on the mortgage, or that its conditions had been performed, and that there has been no misappropriation of firm assets, or conversion thereof into other property, as charged in the bill, and to justify the overruling of the register’s report.” According to this opinion, then, from Avhich we have no reasons now to dissent, the decree, of the chancellor ascertained that said mortgage Avas fully satisfied. That the court did so adjudge, is not to be doubted on the face -of the proceedings, and there is- no evidence aliunde to the contrary.

To support- the olea of res adjudicMa, “the parties must be the same, the subject-matter the sanie, the point must be directly in question, and the judgment must be rendered upon that point,” — Gilbreath v. Jones, 66 Ala. 132. Or, as the principle is elsewhere expressed, res adjudicate-, is determined as existing, ‘Viren it is ascertained that the matters of the two suits are the same, and the issues in the former suit Avere broad enough to have comprehended all that is involved in the issues in the second suit. The inquiry is not, what the parties ac-. tually litigated, but what they might and ought to have litigated ini the former suit.” — Tankersley v. Pettis, 71 Ala. 179; Glass v. Meyrovitz, 119 Ala. 152. The decree here comes well within those requirements;.

On further consideration on application for a rehearing, the former opinion in the cause is modified and withdrawn, and the foregoing .opinion filed' in lieu thereof. The judgment of reversal heretofore rendered will he set aside, and one now rendered affirming the decree of the court below.

Affirmed.

TYSON, J.,

dissenting. — I think it is entirely clear from the decree dismissing the former bill when, it is react in connection with thd pleadings in the cause and the opinion of tire chancellor, that- the dismissal was for a variance1 — a failure to1 prove the partnership; as alleged.

“It is elementary that if from the decree in a cause there be uncertainty as to what was really decided, resort may be had to- the pleadings and to the opinion of the court to throw light upon the subject.” — National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 234.

The opinion of the chancellor was a,s follows: “On consideration of tire legal evidence the court: is of opinion that M. A. Wood, P. S. Wood and B. W. Wood nauredl in the bill were not partners of the firm of J. P. Wood & Co. and not liable to account to> complainant as prayed in this suit;” then follows, “The court is further of the opinion that, the complainant is not entitled to the relief for which he' prays;” following these words, is tire decree dismissing the bill.

On appeal of that cause to1 this court, it was held that the variance was fatal and justified the dismissal of the bill, without reference to whether there was anything due on the mortgage. — Wood v. Wood, 119 Ala. 183.

It is only by argument or inference that the second clause of tire opinion of the chancellor, quoted above, can be saidi to have had reference to' the question of indebtedness, vel non, on. the mortgage debt, and that the dismissal was on that account

Estoppels must be certain to every intent and. if upon the face of the record it is left to conjecture or inference as to whether the dismissal was because there was nothing due upon the mortgage or because of the variance, there is no estoppel. — Bigelow on Estoppel (5th ed.), 51-61; Russell v. Place, 94 U. S. 606; Hooker v. Hubbard, 102 Mass. 245; Steam etc. Co. v. Meyrose, 27 Fed. 213; Burlen v. Shannon, 96 Am. Dec. 733; Gilbreath v. Jones, 66 Ala. 132; Greenwood v. Warren, 120 Ala. 78.

The question here is, not whether the issues made by the pleadings were broad enough to present for consifiteraticn and decision indebtedness vel non upon the mortgage debt, but it is Avhether that disputed question was necessarily tried and determined. And the fact that it was actually tried and determined must appear with reasonable certainty, and not as a; mere matter of inference or argument. — Strauss v. Meertief. 64 Ala. 310.

Even a probability will not supply the place of definiteness and certainty, and where an inference is relied! upon, it must be a necessary and an irresistible one. How can it be said with any degree of certainty that the dismissal was not on. account of the variance, but on account of the finding by the chancellor that there was nothing due upon the mortgage, or on account of both? I do not think the record furnishes a sufficient answer to this inquiry, and, therefore, entertain the opinion that the estoppel relied upon by complainant has not been shown. The inference that the chancellor’ found nothing to he due upon the mortgage is not a necessary one to uphold the decree. On the contrary, the decree, can well be supported upon his finding that there was a. material variance. And this, I entertain no- doubt, was the ground of dismissal of the bill.  