[Austin et al. v. Bean, Executor, et al.] Austin et al. v. Bean, Executor, et al. Bill in Equity to Foreclose a Mortgage. 1. Partition of lands; no equities involved.—In a proceeding for the partition of lands, as provided by our statutory system, (Code, §§ 32373262), the consideration and adjustment of equities between the joint owners is not involved; and a decree of the probate court granting partition settles, in no wise, any of the equities subsisting in favor of the several owners upon, or in respect of, the common property. 2. Same; co-tenant not estopped thereby from asserting equities against existing mortgage.-When there exists a mortgage on joint property to secure a debt of one of the co-tenants, a partition of the common property by decree of the probate court does not estop the other cotenants from asserting their equity to have the share allotted to their joint owner sold first to pay such debt, in exoneration of the shares allotted to them. 3. Same; co-tenant not estopped from asserting equity by exchange of her share by warranty deed.-The fact that one of the joint owners of common property, immediately after the partition of said lands by decree of the probate court, conveyed the share allotted to her by warranty deed, in exchange for the share of one of her co-tenants, does not estop her from the assertion of her equity to have the share so exchanged sold first, to satisfy a mortgage existing upon the whole property, given to secure a debt of her said co-tenant, the mortgage having been executed prior to the acquisition of title by the co-ten ants. 4. Purchaser from an heir; charged with notice of equity in favor of other heirs.-The purchaser of land from one who derives title by descent from his father, is charged with notice of any equity existing in favor of the ancestor, or the co-heirs of the grantor, affecting the land in its descent. 5. Mortgage by joint owner after partition does not destroy equity in favor of his co-tenants.-When, after the partition of lands, the title to which was acquired by descent, one of the heirs mortgages the share allotted to him, his mortgagees are charged with notice of equities existing in favor of the other heirs, to have the mortgagor's share applied first, in exoneration of the shares of his co-heirs, to the satisfaction of a prior mortgage executed by their ancestor on the common property for the benefit of such heir and mortgagor. 6. Testimony as to statement made by deceased; competency of witnesses interested in the suit.-The exception as to competency of witnesses, provided by statute (Acts 1890-91, p. 557), being for the protection of the estate of the deceased and those claiming under him, when 101 133 e131 365 [Austin et al. v. Bean, Executor, at al.] the estate of the deceased person is interested in the result of a proceeding, the adversary of said estate can not object to the competency of witnesses called by the representatives of the deceased in such proceedings, to prove transactions with or statements by the deceased, on the ground that the witnesses are heirs of the deceased and directly interested in the result of the suit. 7. Parties to a suit; a non compos mentis a ward of the court.-When a non compos mentis is a party to a suit, he will be treated as the ward of the court, so far as is necessary for the court to see that his rights are properly asserted and protected; and for this purpose a guardian ad litem, appointed to represent his interest, is under the direct control of the court. APPEAL from the City Court of Decatur. Heard before the Hon. W. H. SIMPSON. The original bill in this case was filed on February 12, 1891, to foreclose a mortgage, executed by V. L. Austin and wife, Elizabeth Austin, to John D. Rather on February 12, 1884, and which mortgage was transferred by said Rather to B. F. Bean on March 26, 1885. The said transferee, B. F. Bean, died, and the executor of his last will and testament, L. G. Bean, is the complainant in the present suit. The said V. L. Austin and Elizabeth Austin died before the present bill was filed, and left surviving them as heirs-at-law William H. Austin, Mollie Roper, nee Austin, and Taylor Austin, a non compos mentis. The facts in the case are sufficiently stated in the opinion. There were objections by the Armitage-Herschell Co. to that portion of the testimony of William H. Austin, Charles Austin and Mrs. Roper to the effect that the money borrowed from Rather, to secure the payment of which the mortgage was executed, was for the use and benefit of Willam H. Austin. The grounds of these objections were, that it was shown, on cross-examination, that the witnesses' source of knowledge was from hearsay, and because such testimony was in reference to a transaction with or statement by a deceased person, whose estate is the subject matter of the suit, and the witnesses are parties thereto and interested therein. These objections were sustained in the final decree of the chancellor. On the final submission of the cause, upon the pleadings and proof, the chancellor decreed that the complainant in the original bill was entitled to the relief prayed [Austin et al. v. Bean, Executor, et al.] for, and that the Armitage-Herschell Company, under the prayer for general relief in its cross-bill, was entitled to have all the lands described in the mortgage of Bean to Rather "sold for the satisfaction of the mortgage of the complainant, L. G. Bean, executor, and to have the sale of each share made separately, and to have each share contribute equally to the payment of the price and paramount charges on the land, towit, the Bean mortgage and the costs of the suit; and further, to have the remainder of the said three shares paid over to the parties entitled, to-wit, Mollie Roper, Taylor Austin and said Armitage-Herschell Company. The chancellor also declared that if any latent equity existed in favor of Mollie Roper, Taylor Austin and Charles Austin, at the death of their father, as set up in the cross-bill filed by them, it was "cut off by the partition proceedings in the probate court to which they were parties, and by the conveyance of Mollie Roper to William H. Austin, all of which made them warrantors of each other," and, therefore, decreed that the cross-bill filed by them be dismissed. This appeal is prosecuted by Mollie Roper, Taylor Austin and Charles Austin, who assign as error the final decree of the chancellor granting the complainant the relief prayed for in the original bill, dismissing appellant's cross-bill, and in not ordering the lands of William H. Austin sold for the payment of the mortgage before subjecting the lands of appellants to sale, and also in holding that William H. Austin, Mollie Roper and Taylor Austin were not competent to testify as to the purposes for which the mortgage from Virgil Austin to Rather was made. BRICKELL, SEMPLE & GUNTER, for appellants.-(1.) W. H. Austin, Charles Austin and Mollie Roper were competent witnesses to testify as to the making of the mortgage by Virgil Austin to secure a debt for W. H. Austin.-Code, $2765, Acts 1890-91, p. 557; Kumpe v. Coons, 63 Ala. 448. (2.) Mollie Roper and Taylor Austin had the right to require W. H. Austin's share of the land to be applied first to the payment of the mortgage debt of Rather. (3.) Subrogation and marshalling are founded on the same principles; the latter being resorted to prior to sales, the former after sales, to effect the same. [Austin et al. v. Bean, Executor, et al.] result, viz., the proper application of property to the discharge of debts so as to work out equitable results as between persons having claims against different parcels of property or standing in a different relation to the same debt.-Cheeseborough v. Millard, 7 Am. Dec. 494; Aldrich v. Cooper, 2 Lead. Cases in Eq. (Title "Marshalling,'') pp. 262-318. (4.) (4.) Wherever, as between two parties who personally are bound, or whose property is bound for debt, the liability of one is primary and the other secondary, the right of subrogation and marshalling exists.-Redington v. Cornwall, 90 Cal. 49; Aldrich v. Cooper, 2 Lead. Cases in Eq., (Title "Marshalling and Subrogation"), p. 292; Wilkes v. Harper, 2 Barb. Ch. Rep. 338; Harris on Subrogation, 181, 184. (5.) The right to marshal securities as to the debtor is absolute, if no injustice is done, and so it is as to the creditor. It is clear that no damage can be done to the creditor, for all the land is to be sold for his debt, there is no diminution of his security, but only the order of sale is directed. And as to the debtor, W. H. Austin, he can not complain, since all that is asked is that his own property shall be applied to pay his debt to the relief of his surety's property-Twombly v. Cassidy, 82 N. Y. 155; Cole v. Malcolm, 66 N. Y. 363; Dickson v. Chorn, 71 Am. Dec. 382; 14 Amer. & Eng. Encyc., 702-3-4; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618. (6.) The right to require the property primarily liable for a debt to be applied for the relief of property not so liable, applies to persons taking by descent or devise as well as by purchase.-2 Lead. Cases in Eq., 242, 292; Harris on Subrogation, 97; Rodman v. Burroughs, 63 N. C. 242. (7.) And property mortgaged stands as a surety, if a person agreeing to pay under such circumstances would be a surety. And a person entitled to the property, though not liable for the debt, has the rights of a surety with respect to the debt. Lidderdale v. Robinson, 2 Brock. 159; 77 Amer. Dec. 490; Bull v. Coe, 11 Am. State Rep. 240-242; Dering v. Earl of W., 1 Lead. Cases in Eq. 149-150; Reddington v. Cornwall, 90 Cal. 49; Price v. Reed, 15 N. E. Rep. 754; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618; Twombly v. Cassidy, 82 N. Y. 155; Cole v. Malcolm, 66 N. Y. 363. (8.) The equities of Taylor Austin and Mollie Roper were not involved and could not be adjusted in a partition proceeding in the probate court. The partition did [Austin et al. v. Bean, Executor, et al.] not affect the mortgage of Rather, except to make it, as between the several owners of the land which had been divided, to rest in equity, primarily on the principal debtor, W. H. Austin, as before it rested on his undivided interest. The object and effect of partition is only to sever the joint possession, transferring to each owner's share the equities resting on it before division.-5 Wait's Act. & Def. 87; Westervelt v. Haff, 2 Sandf. Ch. (N. Y.) 98; Re Howe, 1 Paige 125; Freeman on Co-ten. & Par., §§415, 478; Barington v. Clarke, 21 Am. Dec. 432; Staples v. Bradley, 60 Amer. Dec. 630. (9.) The mortgage executed by W. H. Austin on his own share after the partition and conveyance to him by Mollie Roper gave to his mortgagee no right superior to that possessed by W. H. Austin. The mortgage recited that there was a prior mortgage on his land to secure a debt owing by his ancestor and himself; and the possession of the owners of the other lands included in the Rather mortgage was notice to W. H. Austin's mortgagee of their equity to hold the same against any right of W. H. Austin, or person claiming under him, to sell their land for any purpose, and of the right of the possessors to equities against the world.-Ellis v. Tousley, 1 Paige 280; Clidewell v. Spaugh, 26 Ind. 323; Moore v. Pierson, 71 Amer. Dec. 409 and note; Bryan v. Raimivez, 68 Am. Dec. 340 and note; Wyatt v. Elam, 68 Amer. Dec. 518. (10.) The mortgagee of W. H. Austin did not obtain a legal title to the land owned by him. The legal title was in Rather, the first mortgagee. There can be no such thing as a bona fide purchaser without the legal title.-Chiles v. Boon, 10 Pet. 177; Wilson v. Holt, 83 Ala. 528, 3 So. Rep. 321; 2 Story's Eq., 1502; Cole v. Malcolm, 66 N. Y. 363; 2 Jones on Mortgages, $1202; Robeson's Appeal, 117 Pa. St. 628; 14 Amer. & Eng. Enyc. of Law, 686; Woollen v. Hillen, 52 Amer. Dec. 693; 2 Story's Eq., 1373; 14 Amer. & Eng. Encyc. of Law, 702-4; Twombly v. Cassidy, 82 N. Y. 155. ON APPLICATION FOR REHEARING. (1.) The execution of the warranty deeds by Mrs. Roper and W. H. Austin in exchange of the shares allotted to them, respectively, did not destroy the equity existing in Mrs Roper, to have the share conveyed to W. |