years; entire mortgage debt not having been trustee, and Thompson assumed the payment paid.

of the principal sum of $21,000 of the mortgage debt. The mortgagor and his wife on October 26, 1918, sold and conveyed a part of the land in this mortgage to W. J. Cathey; and Cathey assumed and agreed to pay $7,000 of the principal sum of the mortgage debt; and afterwards Cathey sold and conveyed this same land to the defendant Mattie J. Selby, and she assumed and agreed to pay the $7.000 of the principal sum of the mortgage debt. On October 28, 1918, the mortgagor and his wife sold and conveyed a part of the land described in the mortgage to RothKirtland Realty Company, and they assumed and agreed to pay $7,000 of the principal sum secured by the mortgage; and afterwards the Roth-Kirtland Realty Company

Appeal from Circuit Court, Marengo Coun- sold and conveyed this same land to W. S. ty; John McKinley, Judge.

Little; and he assumed and agreed to pay Bill in equity by W. A. Menefee against B. $7,000 of the principal of this mortgage debt. Aden Thompson and others to foreclose a W. S. Little was adjudicated a bankrupt, and mortgage. From a decree sustaining demur-Y. K. Lewis, as trustee of his estate in bankrer to his cross-bill, respondent Thompson ruptcy, is made party to the cause. appeals. Reversed, rendered, and remanded.

I. I. Canterbury, of Linden, for appellant. Henry McDaniel, of, Demopolis, and J. F. Thompson, of Birmingham, for appellee.

MILLER, J. This is a bill in equity to foreclose a mortgage executed April 20, 1919, by A. Burpo Menefee and wife to the John Hancock Mutual Life Insurance Company, a body corporate, on real estate in Marengo county, Ala., aggregating 1,777.58 acres, to secure a loan of $35,000. The bill was filed by W. A. Menefee, father of A. Burpo Menefee, against B. Aden Thompson, individually, and as trustee, Mattie J. Selby, W. S. Little, and Y. K. Lewis, as trustee in bankruptcy of the estate of W S. Little, a bankrupt.

The complainant, owner of the mortgage and the debt secured by it, states in the bill that he ratifies the agreement made by the different purchasers of the property in the mortgage with the mortgagor, by which they assumed and agreed to pay only a certain part of the mortgage debt; and requests the court to sell separately the different tracts of land purchased by them respectively to pay the respective amounts of the mortgage debt assumed by each respectively.

There were decrees pro confesso on personal service against the defendants Mattie J. Selby, W. S. Little, and Y. K. Lewis, as trustee of the estate of W. S. Little, a bankrupt.

The defendant B. Aden Thompson, indiThe bill alleges before the maturity of the vidually and as trustee, demurred to the bill; mortgage debt, the mortgage and the debt it was overruled by the court. This defendsecured by it were transferred to complain- ant Thompson afterwards answered the bill, ant, W. A. Menefee, for valuable considera- in which he admits that he as an individual tion; and that default has been made in the and as trustee is one and the same person; payment of the interest on the principal and he admits Pool purchased the land from the the taxes on the property by which the power mortgagor and that he purchased it from of sale became operative; and he has elected Pool as the bill alleges, but denies that he or to so declare it, which is permitted by the Pool agreed or assumed $21,000 of the princimortgage. It appears from the bill that the pal sum secured by the mortgage. He files mortgagor owns no interest in the real es- his answer in the nature of a cross-bill. The tate; since the execution of the mortgage he complainant demurred to it, and it was sushas sold and conveyed different parts of the tained by the court: from which decree the property to different persons in part consid-cross-respondent B. Aden Thompson appeals, eration of their assuming and agreeing to and it is the error assigned. pay a part of this mortgage debt.

The mortgagor and his wife on October 23, 1918, sold and conveyed a part of the land in the mortgage, which is particularly described in the bill, to B. F. Pool, and Pool in accepting the conveyance assumed payment of the principal sum of $21,000 of the mortgage debt. Pool afterwards sold and conveyed the same land to defendant B. Aden Thompson,

In Whitfield v. Riddle, 78 Ala. 99, Chief Justice Stone, in writing for the court, stated:

must relate to, and be connected with the sub"A cross-bill is in its nature defensive. It ject of the original bill, and can bring in no new matter entirely foreign to it, except, perhaps, in cases of set-off against an insolvent complainant."

(100 So.)

In Howe v. Roberts, 209 Ala. 80, 95 South. | of said mortgage, then said mortgage shall con346, this court wrote: tinue until the date of its maturity."

"Cross-bills are allowed when necessary to do complete justice between the parties and to adjust all the equities between them connected with the subject-matter of the original bill. Davis v. Cook, 65 Ala. 617. Or, when some special equity exists, to secure the benefit of a set-off. Gafford v. Proskauer, 59 Ala. 264; Knight v. Drane, 77 Ala. 371."

In Davis v. Cook, 65 Ala. 623, this court in discussing this subject quoted with approval the following:

There is no averment that this part of the agreement has been breached by the complainant.

The cause of action presented by the bill of complaint is based on a contract for borrowed money, $35,000, secured by mortgage on real estate. It was given by A. Burpo Menefee and wife to John Hancock Mutual Life Insurance Company, a corporation, dated April 20, 1918. The mortgage was duly transferred to the complainant. The bill "A cross-bill must be confined to the sub- seeks to foreclose the mortgage, to sell the ject-matter of the bill. An entire departure from it is not admissible. If a bill is filed for land in it in order to pay the debt secured by a certain purpose, the defendant to the bill it. The cause of action presented by the cannot, by any cross-bill, bring into litigation cross-bill is based on a written contract, datin that suit all causes of action which he may ed March 1, 1922, executed by the parties have against the complainant, unless there exist hereinbefore mentioned. It avers the consome special circumstances, such as insolvency, tract has been breached by the complainant, nonresidence, etc., which would render it neces- that cross-respondent Thompson was damsary in order to avoid irreparable injury. Thus, if a bill be filed for specific execution of aged thereby, and offers to set off the $21,000 a contract for land, the defendant cannot, by due complainant by him under the mortgage way of cross-bill, bring into litigation a fraud contract in the original bill with the damages practiced on him by the complainant in swap-claimed to be due cross-respondent by the ping horses, or a debt due by the complainant, complainant for the alleged breaches by him unless connected with the contract concerning of the contract of March 1, 1922. the land, sought to be enforced. The crossbill must relate exclusively to the subjectmatter of the bill and things connected therewith, and foreign matter cannot be introduced, unless under special circumstances.' This is what we understand is implied in the phrase 'subject-matter of the bill.' See, also, Tate v. Evans, 54 Ala. 16."

The cross-respondent Thompson, by his cross-bill, sets up a written agreement, made and entered into by him with complainant,

A. Burpo Menefee, New Orleans Cattle Loan Company, and B. F. Pool. He avers it has been breached by the complainant, and alleges he was damaged thereby and seeks to set off with this damage the $21,000 mortgage debt of the insurance company, assumed by him on his property in their mortgage, which debt is now owned by the complainant and which the original bill seeks to foreclose on his land. The said land sold by the mortgagor, A. Burpo Menefee, to Pool and after wards sold by Pool to cross-respondent Thompson, is known as the Alfalfa Meadows Plantation. It is mentioned only incidentally in this way in that agreement:

[1] This contract shows and the cross-bill avers this agreement of March 1, 1922, was entered into between the parties to settle and compromise various suits between them arising out of sale of cattle by A. Burpo Menefee to Pool, and which were sold by Pool to Thompson, and on which the New Orleans Cattle Company held a mortgage; also, a suit by A. Burpo Menefee to rescind the sale to Thompson; and various other matters in of the land by him to Pool, which Pool sold controversy between the parties. In the contract the complainant and A. Burpo Menefee agreed to convey some lots in Nashville, Tenn., to cross-respondent Thompson, which

they failed to do according to contract; and they failed to convey to him lots known as Belmont Heights as they agreed to do in the contract; and that W. A. Menefee agreed to convey to him by quitclaim 240 acres, particuwhich he failed to do, according to the conlarly described, in Marengo county, Ala., tract. The cross-bill alleges the contract of March 1, 1922, was thus breached by W. A. Menefee, the complainant; it avers crossrespondent Thompson was injured and dam"Said W. A. Menefee hereby agrees that B. aged thereby, and he seeks to set off the same Aden Thompson or the plantation known as against the mortgage debt of $21,000, which Alfalfa Meadows, shall only be responsible for the principal sum of twenty-one thousand ($21,- complainant is seeking to collect by fore000) dollars of the mortgage on said plantation closure. The cross-respondent Thompson in favor of John Hancock Mutual Life Insur-avers his readiness, willingness, and ability ance Company, and that upon the payment of to perform his part of the contract of March said sum, together with the interest thereon, 1, 1922. according to the terms of said mortgage, the This averment was sufficient under the said mortgage shall be released so far as said contract between the parties. The performAlfalfa Meadows Plantation is concerned, and he will cause or procure the same to be done by ance by Thompson was conditional on the the lawful holder of said mortgage. That if performance by Menefee of the contract in the said interest on twenty-one thousand dol- his properly executing and delivering the lars ($21,000) is paid according to the terms | deeds mentioned in section 1 of the contract

to Thompson or his attorney. Section 2 of | Ala. 522, 528, 14 South. 898; Continental the contract reads as follows, in part: Life Ins. Co. v. Webb, 54 Ala. 694.

(100 So.)

be the subject of set off at law," under sec-mortgage being foreclosed; the said amounts tion 5858, Code 1907. Conner v. Smith, 88 having been paid as taxes and interest for Ala. 309, 7 South. 150. The damages for the them as aforesaid by him. alleged breaches of the contract claimed by the cross-respondent are capable of being measured by a pecuniary standard; and they may be subject to set-off in equity as the cross-bill seeks, against the secured debt, in reduction or extinguishment thereof, to the amount assumed by the cross-respondent Thompson on his property in the mortgage. Authorities supra.

[3] The complainant and Mattie J. Selby, W. S. Little, W. J. Cathey, and Roth-Kirtland Realty Company, a corporation, are made parties defendant to the cross-bill. Are W. J. Cathey and Roth-Kirtland Realty Company necessary or proper parties to the crossbill? The complainant claims they are improper parties to the cross-bill; and the question is raised by demurrer. They are not parties to the contract alleged therein to have been breached. They have no interest in the damages alleged to have been sustained by the breach of the contract. They have no interest in the set-off sought by the damages against the $21,000 mortgage debt due complainant by the cross-respondent Thompson; but paragraph 12 of the crossbill reads as follows:

"And respondent Thompson further avers that W. J. Cathey, who resides at Nashville, Tenn., and Roth-Kirtland Realty Company, a corporation having its place of business in Nashville, Tenn., claims some interest in the

[5] The averments of the cross-bill do not entitle cross-respondent to subrogation for the amounts alleged to have been paid by him. It affirmatively appears he paid only a part of the mortgage debt, assumed by Selby and Little, respectively, and for which the land therein of each was liable; and the entire mortgage debt has not been paid. The rule and the reason for the rule in regard to subrogation was stated in Atherton v. Tesch, 202 Ala. 448, 80 South. 832. "Before subrogation can be enforced the whole debt must be paid, and, further, that subrogation will not be enforced if the rights of a creditor are to be in the least prejudiced thereby." Cross v. Bank of Ensley, 205 Ala. 274, 87 South. 843. The cross-bill alleges no facts entitling the cross-respondent to subrogation. [6, 7] The complainant demurred to the cross-bill; it was sustained by the court, and it should have been overruled. A decree to that effect will be entered here. The complainant demurred to parts of the cross-bill; we find no ruling thereon by the court, so we cannot review these demurrers.

The decree is reversed; a decree will be entered here overruling the demurrers to the cross-bill, and the cause will be remanded. Reversed, rendered, and remanded.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

lands embraced in said John' Hancock Mutual Life Insurance Company mortgage which belong respectively to the said Mattie J. Selby and W. S. Little; that is to say, W. J. Cathey claims some interest in those lands sold to Mattie J. Selby and Roth-Kirtland Realty Com- JACKSON v. BERRY-SNELLINGS REALTY pany claim some interest in and to the W. S. Little land."

If they own some interest in this land in the mortgage, as alleged, then they are not improperly joined as parties.

CO. (2 Div. 823.)

(Supreme Court of Alabama. April 24, 1924.) I. Brokers 37-Evidence held to warrant finding that realty corporation sold land as owner's agent.

[4] The cross-bill alleges that cross- In action against realty corporation for respondent Thompson to prevent the foreclo- money had and received, evidence held to warsure of the mortgage, and to prevent the pow-rant finding that corporation, in securing deed er of sale therein from becoming operative, did pay the entire tax on all the land in the mortgage for the years 1919, 1920, and 1921, and did pay the entire interest on the entire principal [$35,000] secured by the mortgage to complainant for the years 1919, 1920, and 1921. He avers he was liable for only three

fifths of the amounts, and Mattie J. Selby was liable for and should have paid one-fifth of the amounts, and that W. S. Little or Lewis, as his trustee in bankruptcy, was liable for and should have paid one-fifth of the amounts. The cross-respondent Thompson seeks to recover $250 from Mattie J. Selby and $250 from W. S. Little by being "subrogated to the rights of the said W. A. Menefee

from owner, was not bona fide exercising its option as purchaser, but was acting as owner's agent, and that it sold land on owner's account for $40 an acre, while accounting for only $32.50 per acre.

2. Money received

15-Nature of action for money had and received stated.

its nature an equitable action, maintainable An action for money had and received is in whenever one person has money which in equity and good conscience belongs to another, and no mere legal niceties should be permitted to defeat justice and prevent recovery.

3. Brokers 31-That owner listing land for sale gave option held not to preclude proof land sold on owner's account.

Where owner listed land for sale with realin their respective tracts of land" in the ty corporation, and thereafter gave corporation

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

| 1918, the plaintiff entered into a written contract leasing this land for one year to the defendant, and in said lease gave to the defendant an option to purchase the property at the price of $7,125, provided the purchase price be tendered not later than January 1, 1919; and on October 22, 1918, the plaintiff executed a deed to the defendant company conAppeal from Circuit Court, Marengo Coun- veying the plantation for a consideration of ty; John McKinley, Judge. $6,611.15; and on October 26, 1918, defend

Action in assumpsit by Florence P. Jack-ant conveyed the property by warranty deed son against the Berry-Snellings Realty Com-to Sparks for a recited consideration of $8,pany. Judgment for defendant, and plain- 136.80. The defendant therefore insists that tiff appeals. Reversed and remanded.